Opinion
570640/14
04-05-2019
The PEOPLE of the State of New York, Respondent, v. David ORTIZ, Defendant-Appellant.
The Legal Aid Society, Criminal Appeals Bureau, New York City (Laura Lieberman Cohen and Justine M. Luongo of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York City (Jennifer Westphal of counsel), for respondent.
The Legal Aid Society, Criminal Appeals Bureau, New York City (Laura Lieberman Cohen and Justine M. Luongo of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York City (Jennifer Westphal of counsel), for respondent.
PRESENT: Ling-Cohan, J.P., Cooper, Edmead, JJ.
Per Curiam. Judgment of conviction (Kevin B. McGrath, J.), rendered June 23, 2014, reversed, on the law and the facts, motion to suppress granted and the accusatory instrument dismissed.
The evidence presented at the suppression hearing established that, at about 11:00 p.m. on March 17, 2014, Police Officer Stephen Frappier and two other officers were in an unmarked vehicle on anti-crime patrol, proceeding westbound on Rivington Street. Officer Frappier initially observed defendant running eastbound on the sidewalk at a fast pace and then across the street mid-block. As a result, one or two vehicles had to slow down, although no vehicles had to stop. The officers got out of their vehicle, intending to issue defendant a summons for disorderly conduct. However, as he approached defendant, Officer Frappier saw defendant clutching something on his left waistband or pocket, holding it tightly. Believing that defendant had a weapon, the officer drew his pistol and ordered defendant to put his hands in the air. Defendant complied. Defendant was placed in handcuffs and the officer frisked the area where he believed the weapon to be. A gravity knife was discovered in defendant's pocket. Defendant was arrested and a search of his person incident to the arrest produced five clear ziplock bags of cocaine.
Pursuant to CPL 140.10(1)(a), a police officer may pursue an individual to arrest or issue a summons when the officer has reasonable cause to believe that an offense was committed in the officer's presence. "Reasonable cause" as used in CPL 140.10 is the equivalent of probable cause (see People v. Bothwell , 261 A.D.2d 232, 234, 690 N.Y.S.2d 231 [1999], lv denied 93 N.Y.2d 1026, 697 N.Y.S.2d 585, 719 N.E.2d 946 [1999] ). In determining whether probable cause exists to arrest a person for disorderly conduct, the circumstances must indicate that the arresting officer was justified in concluding that the defendant was intentionally or recklessly creating a substantial risk that public inconvenience, annoyance or alarm would occur (see People v. Johnson , 22 N.Y.3d 1162, 986 N.Y.S.2d 407, 9 N.E.3d 902 [2014] ; People v. Delhall , 131 A.D.2d 870, 517 N.Y.S.2d 228 [1987] ). This requirement stems from the mens rea component, which requires proof of an intent to threaten public safety, peace or order, or the reckless creation of such a risk (see People v. Baker , 20 N.Y.3d 354, 359, 960 N.Y.S.2d 704, 984 N.E.2d 902 [2013] ; People v. Weaver , 16 N.Y.3d 123, 128, 919 N.Y.S.2d 99, 944 N.E.2d 634 [2011] ).
We conclude, from a review of the record, that the evidence was insufficient to provide the arresting officer with probable cause to believe that defendant was obstructing vehicular traffic and that he intended to breach the peace or that such conduct posed a substantial risk of a breach of the peace. Indeed, there was no evidence indicating that defendant caused anything more than a momentary inconvenience to the one or two vehicles that had to slow down a "little bit" as he ran across the street. This was not sufficient to satisfy the public harm element of the statute (see People v. Johnson , 22 N.Y.3d at 1164, 986 N.Y.S.2d 407, 9 N.E.3d 902 ; cf. People v. Moye , 90 A.D.3d 472, 935 N.Y.S.2d 11 [2011], lv denied 18 N.Y.3d 926, 942 N.Y.S.2d 465, 965 N.E.2d 967 [2012] [probable cause to arrest for Penal Law § 240.20[5] found when defendant ran from police, zigzagging between sidewalk and street and interfering with traffic] ).
Since the officer did not have probable cause to believe that defendant committed a violation in his presence, he was not entitled to pursue defendant in order to arrest him or issue a summons for disorderly conduct (cf. People v. Basono, 122 A.D.3d 553, 997 N.Y.S.2d 415 [2014], lv denied 25 N.Y.3d 1069, 12 N.Y.S.3d 620, 34 N.E.3d 371 [2015] ).
Nor did the police otherwise have a reasonable suspicion that defendant was involved in a felony or misdemeanor so as to authorize a forcible stop and detention (see CPL 140.50[1] ; People v. De Bour , 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ). Defendant's act of running down the sidewalk and then across the street, while clutching something on his waist that was unidentifiable to police, did not establish reasonable suspicion that he had a gun or was otherwise involved in a crime (see Matter of Jaquan M. , 97 A.D.3d 403, 948 N.Y.S.2d 51 [2012], appeal dismissed 19 N.Y.3d 1041, 954 N.Y.S.2d 3, 978 N.E.2d 596 [2012] [the mere fact that an officer sees a person holding something near his waistband is not enough to form a reasonable suspicion, absent any indication of a weapon, such as the visible outline of a gun]; People v. Crawford , 89 A.D.3d 422, 423, 931 N.Y.S.2d 313 [2011] [defendant's flight, when accompanied by nothing more than the presence of an object in his pocket that was unidentifiable even at close range, did not raise a reasonable suspicion that he had a gun or otherwise was involved in a crime]; People v. Reyes , 69 A.D.3d 523, 525-526, 896 N.Y.S.2d 301 [2010], appeal dismissed 15 N.Y.3d 863, 910 N.Y.S.2d 31, 936 N.E.2d 912 [2010] [flight alone or in conjunction with equivocal circumstances that might permit a request for information is insufficient to justify pursuit]; People v. Barreto , 161 A.D.2d 305, 555 N.Y.S.2d 303 [1990], appeal denied 76 N.Y.2d 852, 560 N.Y.S.2d 992, 561 N.E.2d 892 [1990] [there was no radio run, no anonymous tip, nor can defendant's acts of placing his hands on his sides and crossing the street be considered furtive gestures] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.