People v. Abdul-Mateen

126 A.D.3d 986, 4 N.Y.S.3d 310

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 25, 2015
• Docket: 2011-10969
• Status: Published

Opinions

Appeal by the defendant from a judgment of the Supreme Court, Kings County (McKay, J.), rendered November 16, 2011, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and bail jumping in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing (Firetog, J.), of that branch of the defendant’s omnibus motion which was to suppress physical evidence.

Ordered that the judgment is affirmed.

Police Officer Jonas Schwizer gave the following testimony at a suppression hearing. On the evening of June 30, 2008, he responded to a radio dispatch. The dispatch indicated that there was a black male wearing a white T-shirt and black pants who was carrying a firearm at a certain location in Brooklyn. Shortly thereafter, Schwizer arrived at that location and observed four individuals, three of whom matched the description given in the radio dispatch. Schwizer exited his vehicle, approached the four men, and asked them to show their hands. Two of the individuals who matched the description, and one who did not, put their hands up. The fourth individual, identified as the defendant, turned away from Schwizer with his hands at his waist area. The defendant did not comply with Schwizer’s request to show his hands and Schwizer could not see them. Schwizer approached the defendant from behind, reached around and grabbed the defendant’s hands, and then felt the handle of a firearm. The defendant immediately ran, causing a .45 semiautomatic firearm to dislodge and fall to the ground. The defendant was subsequently apprehended.

At the conclusion of the suppression hearing, the Supreme Court denied that branch of the defendant’s omnibus motion which was to suppress the firearm.

“On a motion to suppress physical evidence, the People bear the burden of going forward to establish the legality of police conduct in the first instance” (People v Hernandez, 40 AD3d 777, 778 [2007]; see People v Berrios, 28 NY2d 361, 367-368 [1971]). In People v De Bour (40 NY2d 210 [1976]), the Court of Appeals established a graduated four-level test for evaluating the propriety of police encounters when a police officer is acting in a law enforcement capacity (see People v Moore, 6 NY3d 496, 498-499 [2006]). The first level permits a police officer to request information from an individual, and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality (see People v Moore, 6 NY3d at 498; People v De Bour, 40 NY2d at 223). The second level, known as the common-law right of inquiry, requires a founded suspicion that criminal activity is afoot, and permits a somewhat greater intrusion (see People v Moore, 6 NY3d at ). The third level permits a police officer to forcibly stop and detain an individual. Such a detention, however, is not permitted unless there is a reasonable suspicion that an individual is committing, has committed, or is about to commit a crime (see People v De Bour, 40 NY2d at 223; see also People v Moore, 6 NY3d at 499). The fourth level authorizes an arrest based on probable cause to believe that a person has committed a crime (see People v De Bour, 40 NY2d at 223; see also People v Moore, 6 NY3d at 499). A defendant’s later conduct “cannot validate an encounter that was not justified at its inception” (People v Moore, 6 NY3d at 498).

“Encounters between citizens and the police in public places are of an endless variety with no two being precisely alike” (People v Finlayson, 76 AD2d 670, 676 [1980]). Here, Schwizer properly exercised his common-law right of inquiry when he initially encountered the defendant, as the defendant matched the general description of a man with a gun at the subject location (see People v Moore, 6 NY3d at 498; People v Spencer, 84 NY2d 749, 753 [1995]; People v Hollman, 79 NY2d 181, 184 [1992]; People v Stewart, 41 NY2d 65, 69 [1976]; People v Larmond, 106 AD3d 934 [2013]; People v Smith, 207 AD2d 759 [1994]; cf. Florida v J.L., 529 US 266 [2000]).

At this stage in the encounter, absent reasonable suspicion of criminal activity, Schwizer could not forcibly detain the defendant (see People v May, 81 NY2d 725 [1992]). However, during his common-law right of inquiry, Schwizer was permitted to ask the defendant to show or raise his hands as a self-protective measure (see People v Herold, 282 AD2d 1, 8 [2001]; People v Oppedisano, 176 AD2d 667, 668 [1991]; see also People v Fernandez, 87 AD3d 474, 475 [2011]; People v Hill, 72 AD3d 702 [2010]; Matter of Anthony S., 181 AD2d 682, 682-683 [1992]).

The defendant’s failure to comply with Schwizer’s request to show his hands, coupled with the nature of the report, and the presence of the defendant’s hands in his waist area, escalated the encounter and justified Schwizer’s conduct in grabbing the defendant’s hands as a self-protective measure (see People v Wyatt, 14 AD3d 441, 441-442 [2005]; see also People v Abdul-Malik, 298 AD2d 595 [2002]; Barry Kamins, New York Search & Seizure § 2.03 [1] at 2-38, 2-39 [2014]). Once Schwizer felt the firearm in the defendant’s waist area, he was furnished with reasonable suspicion (see People v Hollman, 79 NY2d at 185; People v De Bour, 40 NY2d at 223; People v Davenport, 92 AD3d 689, 690-691 [2012]).

Contrary to the position of our dissenting colleague, the testimony reflects that Schwizer did not see the defendant’s hands when the defendant turned his back with his hands at his waist area when the officer asked the defendant to show his hands. In this regard, Schwizer initially testified he was unable to see the defendant’s hands after the defendant turned away, but he could see the defendant’s hands once he grabbed the defendant. Indeed, on cross-examination, Schwizer testified that, while the defendant’s back was toward him, he could not see the defendant’s hands. The record establishes that Schwizer’s conduct was justified at its inception and reasonably related in scope and intensity to the circumstances of the encounter as it developed (see People v Moyaho, 12 AD3d 692, 693 [2004]; People v Douglas, 309 AD2d 517 [2003]). Therefore, the Supreme Court properly denied that branch of the defendant’s omnibus motion which was to suppress the subject firearm.

The defendant contends that, during summation, the prosecutor improperly vouched for the credibility of witnesses, made inflammatory comments, and denigrated the defense. These contentions are unpreserved for appellate review, as the defendant made only a general objection, failed to request curative instructions, and did not timely move for a mistrial on these grounds (see CPL 470.05 [2]; People v Balls, 69 NY2d 641, 642 [1986]; People v Salnave, 41 AD3d 872, 874 [2007]). In any event, most of the challenged remarks were either fair comment on the evidence (see People v Ashwal, 39 NY2d 105 [1976]) or responsive to arguments and theories presented in the defense summation (see People v Galloway, 54 NY2d 396 [1981]). To the extent that any of the challenged remarks were improper, any error in allowing them was harmless in light of the overwhelming evidence of the defendant’s guilt and since there was no significant probability that the error might have contributed to the defendant’s convictions (see People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Hill, 286 AD2d 777, 778 [2001]).

Skelos, J.P., Leventhal and Maltese, JJ., concur.