People v. PerezPeople v. Perez
Lead Opinion
Defendant was apprehended by police officers who were investigating a pattern of robberies inside a New York City Housing Authority (NYCHA) building by performing a “vertical patrol.” The police had made prior arrests for narcotics and trespass at the building, and considered it a high-crime area. The officers were in plain clothes, with their shields displayed around their necks. As part of the investigation, the officers were knocking on residents’ doors and conducting interviews.
While the officers were on the seventh floor, the elevator door opened. Several individuals exited the elevator, followed by defendant, who was wearing a black T-shirt over a yellowish-tan hooded sweatshirt with the hood up. Defendant took one step out of the elevator, but, apparently upon noticing the officers, went back into the elevator. When one of the officers said to him, “Can you hold the door, police, hold the door,” defendant “kept pressing” the elevator button to close the door. The door closed and the elevatоr went up. According to the officer, defendant’s behavior, coupled with the fact that the building entertained heavy narcotics traffic, motivated him and his colleagues to go up the stairs to verify that defendant belonged in the building. When the elevator did not stop on the eighth floor, the officers walked to the ninth floor and saw defendant in the hallway. One of the officers approached defendant, again identified himself as a police officer, and asked him if he lived in the building. Defendant did not respond, and turned and faced the wall with his head down and his hood up. Upon ap
Around the same time, a police sergeant received a radio transmission describing a robbery that had occurred earlier that evening near the building where defendant had been arrested. The sergeant was informed that the complаinant reported that he was robbed at the point of a machete by two males, one with a red jacket and the other with a black shirt over a yellow mustard hooded sweatshirt. While canvassing for suspects, the sergeant received a phone call from the officer who had arrested defendant in which the officer reported the arrest and defendant’s possession of a machete. Upon hearing the description of defendant’s clothing, which matched the description of the robbery suspect, the sergeant instructed the arresting officer to hold defendаnt at the scene until he arrived. He then picked up the complainant and transported him to outside the building where defendant had been arrested and was being held in the lobby. From within a police vehicle, and not having been informed that a machete was recovered or told that the person he would view matched the description he gave to police, the complainant, upon seeing the handcuffed defendant through the window of the building lobby, immediately identified defendant as the person who had robbed him.
Defendant, still handcuffed, was then placed in a policе van and met by another officer, who asked him how he was doing. Defendant replied by saying that he knew he was “going up north” and that he would “tell you what you want” if he was given a sandwich. The officer transported defendant to the precinct, placed him in the debriefing room, and instructed two officers to get defendant a sandwich. When they returned with the sandwich 15 to 20 minutes later, the officer gave it to de
Supreme Court denied defendаnt’s motion to suppress. With regard to the stop and search of defendant, the court found that “all of the police actions were justified from their inception.” The court concluded that defendant caused the officers to become suspicious when he stepped back into the elevator after observing them with their shields displayed and failed to comply with the direction to hold the elevator door. This, the court held, gave the officers the necessary predicate to follow defendant to the ninth floor and ask him if he lived in the building. The court further concludеd that the arresting officer had a legitimate concern for his safety and a credible reason to believe defendant had a weapon, based on defendant’s refusal to answer his questions, the manner in which he was holding his arm, and the bulge under his sleeve. The court found that once defendant refused to comply with the officer’s direction to show his hands, the officer was justified in taking the added step of pulling back defendant’s sleeve, which revealed the presence of the machete.
The court ruled that the showup was not suggestive because the sergeant who brought the complainant to the building where defendant was arrested did not reveal to the complainant that defendant possessed a machete and that defendant matched the complainant’s description of his assailant to police. It noted that the complainant’s immediate identification of defendant, without any prompting, indicated that the identification was not tainted by suggestiveness and was not the fruit of any unlawful police conduct. Regarding defendant’s statements, the court held that while the People conceded custody, defendant was not interrogatеd and that his statements were completely spontaneous.
Defendant argues on appeal that his arrest was wrongful because the entire series of events that precipitated it was based on a misperception of behavior that was not inherently suspicious and that was consistent with his right to be left alone. The People maintain that the police officers had the right to question defendant based on his mere presence in the building, since it was a NYCHA building that was rife with trespassing and other illegal activity. In any event, the People contend that defendant’s retreаt into the elevator was sufficient to, at the very least, trigger their right to inquire, and that the actions by defendant that followed justified the offi
In determining whether a police encounter with a member of the public is justified, we must consider all of the attendant circumstances (see People v Benjamin,
It is not insignificant that defendant actively evaded the officers’ efforts to get into the elevator with him. Indeed, that is what distinguishes this case from People v Johnson (
Further, in Johnson, there was no mention of a history of trespass in the building, whereas the officer who initially encountered defendant testified that he had made trespass arrests before in the subject building. While, again, the building may not have been a trespass affidavit building like the build
The police action that followed was also proper. Defendant’s refusal to rеspond to the officer’s repeated inquiries, first into whether he lived in the building and next whether he was armed, and the direction to show his hands, was, while perhaps not determinative, still a significant factor escalating the encounter beyond the level one intrusion warranted by the earlier behavior (see People v Fabian,
We take a broader view than the dissent, one authorized by People v De Bour, which recognized “that police-citizen encounters are dynamic situations during which the degree of belief possessed at the point of inception may blossom by virtue of responses or other matters which authorize and indeed require additional action as the scenario unfolds” (40 NY2d at
The showup, in close geographic and temporal proximity to the robbery, was apprоpriate and was not rendered unduly suggestive by the fact that defendant was handcuffed and flanked by officers (see People v Gilford,
The People concede, as they must, that defendant is entitled to vacatur of his sentence for the earlier assault conviction and to a resentencing that considers whether he qualifies for youthful offender status (People v Rudolph,
We see no reason why the same public policy behind Boyer does not apply in the context of remands for youthful offender determinations. Of course, to the extent that, upon remand, the court determines that defendant should receive youthful offender status on the earlier conviction, defendant will be entitled to challenge the sentence on the later conviction by moving pursuant to CPL 440.20.
We have considered and rejected defendant’s remaining claims and including those set forth in his pro se supplemental briefs.
Dissenting Opinion
dissent in a memorandum by Gische, J., as follows: I rеspectfully dissent, because I believe that from the inception of his encounter with the police, defendant’s conduct was consistent with his constitutional right to avoid contact with the police. In addition, the subsequent observation by the police of an otherwise undefined bulge under defendant’s sleeve did not furnish the officers with the requisite reasonable suspicion or a basis for believing that the person subjected to the intrusion was armed and potentially danger
In evaluating the propriety of police conduct, the analysis is confined only to the information known to the officers at the time of the encounter (People v Cruz,
The testimony at the suppression hearing revealed that on the evening of October 12, 2005, three police officers were performing vertical patrols inside a NYCHA building in the Cаstle Hill Housing Development. The officers were dressed in plain clothes, but displayed their shields around their necks. Castle Hill Housing was known to be a high-crime area.
While on the seventh floor, the officers saw the elevator door open and several people exit, followed by defendant, who was wearing a black T-shirt over a mustard-yellow hoodie with the hood covering his head. Defendant took one step out of the elevator, but upon seeing the officers he “went back into the elevator.” Officer Rodriguez thereupon asked him, “Can you hold the door, police, hold the door?” According to Officer Rodriguez, defendant “kept pressing the elevator button to close the door.” The elevator doors closed, and the cab ascended. Officer Rodriguez testified that because there had been a lot of narcotics traffic in the building, the officers wanted to ascertain whether defendant lived in the building. The officers climbed the stairs and encountered defendant standing in the ninth-floor hallway. When Officer Rodriguez approached defendant, he identified himself as a police officer and asked defendant if he lived in the building. Defendant did not respond, and turned to face the wall with his head down looking towards the ground. Officer Rodriguez again asked defendant if he lived in the building, and again defendant did not answer. Officer Rodriguez then noticed a bulge underneath the sleeve of defendant’s right arm. Defendant’s hands were hidden inside the sleeves of his sweatshirt, and he was holding them stiffly and in a “straight down” position. When Officer Rodriguez asked defendant if he had any weapons, defendant did not respond. Officer Rodriguez instructed defendant to show him his hands, and repeated the request several times. With defendant continuing to ignore his requests, Officer Rоdriguez testified that he became concerned for his safety, causing him to grab defendant’s wrist, at which
Only after defendant was apprehended did Officer Rodriguez learn, through a phone call to Sergeant Charles Hyland, that a robbery had been reported as having occurred earlier in the day, within close proximity to the Castle Hill Houses. The report indicated that the complainant had been robbed by two males, one wearing a red jacket and the other wearing a black shirt over a mustard-yellow hoodie sweatshirt and wielding a machete. Sergeant Hyland, upon learning from Officer Rodriguez that defendant matched the description of the assailant, directed that defendant be held at the scene. The complainant was then brought to the scene, and defendant was identified as one of his assailants.
“The tоuchstone of any analysis of a governmental invasion of a citizen’s person under the Fourth Amendment and the constitutional analogue of New York State is reasonableness” (People v Batista,
Applying these oft-cited and well recognized principles, I believe that even if the police were justified at the inception of their сontact with defendant in making a reasonable inquiry, the nature of the interaction thereafter did not raise the level of allowable intrusion to a level three. At level three, the facts supporting reasonable suspicion would have been required before the police could have detained defendant. Moreover, since the police physically grabbed defendant’s wrists, patted down his arm, rolled up his sleeves and removed the machete, a particularized reasonable belief that defendant was armed and dangerous would have been required (see People v Russ,
“ [Reasonable suspicion [to justify a seizure] has been aptly defined as the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe that criminal activity is at hand” (Matter of Jaquan M.,
At bar, defendant’s conduct in retreating into the elevator to go to another floor, his physically turning away from the police when they found him, and his refusal to respond to police commands or questions during this process all constitute permissible avoidance behavior. We do not agree with the majority that these facts justify a conclusion of “flight” or “active escape.” In People v Johnson (
Even if the recent Court of Appeals decision in People v Barksdale (
The further observation of an otherwise unidentifiable bulge on defendant’s arm did not give the officers reason to believe that defendant had committed a crime or that he was in possession of a weapon justifying a frisk (People v Crawford,
There were no other additional objective indicia of criminality present to justify the officer’s actions in this case. From the moment the officers first saw defendant in the elevator up until the time of his arrest, the officers simply had no knowledge that there had been a robbery in the area or that defendant matched the complainant’s description of one of his assailants. It was only after defendant had been arrested that Officer Rodriguez learned for the first time, through a telephone conversation with Sergeant Hyland, about defendant’s potential involvement in the robbery (compare People v Joyce,
Accordingly, I would reverse the November 29, 2006 conviction of robbery in the first degree and grant defendant’s motion to suppress physical evidence, the showup identification and statements he made to the police, and remand this matter for a new trial, preceded by an independent source hearing.