Opinion
No. 227 SSM 46
Decided October 19, 2010.
APPEAL, by permission of a Justice of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered January 28, 2010. The Appellate Division (1) reversed, on the law and the facts, a judgment of the Supreme Court, New York County (Gregory Carro, J.), which had convicted defendant, upon his plea of guilty, of attempted robbery in the third degree, (2) granted defendant's motion to suppress physical evidence and statements, (3) vacated the plea, and (4) remanded the matter for further proceedings.
At a pretrial hearing on defendant's motion to suppress, the arresting police officer testified that he and his partner received a radio dispatch in their patrol car that a 911 call had been received "about a dispute with a knife" at a certain location in Manhattan . The officers had no description of the alleged perpetrator and were not told the identity of the 911 caller. When the officers arrived at the location, one of them observed two men standing in front of a store; they pointed at defendant, who was walking away from them down the middle of the street, and said, "That's him, that's him." Without first speaking to the men, the officers approached defendant and attempted to apprehend him, but he resisted and fled into a nearby apartment building. After a chase, the officers found defendant hiding in the basement whereupon they arrested and searched him, finding a gravity knife and an imitation revolver that they had not observed before. Later that evening, the officer spoke to the men he had seen standing in front of the store, who turned out to be its owners. They told him that defendant had stolen lottery tickets from the store, and then returned with winning tickets which they refused to honor. When defendant displayed what they thought was a revolver, they called the police. Before trial, defendant moved for an order suppressing the gravity knife and the imitation revolver that the officers seized, as well as statements that defendant made to the police after his arrest, on the ground that they lacked probable cause to stop, arrest and search him. The court denied the suppression motion, finding that the officers' knowledge of the 911 call about a knife dispute, when coupled with the store owners' pointing to defendant when the officers arrived at the scene, gave them reasonable suspicion that defendant was involved in the dispute, which escalated when defendant took flight. The Appellate Division concluded that the motion to suppress should have been granted because the officers lacked valid grounds to forcibly detain defendant on the street and then pursue him when he fled, and that the store owners' direction of the officers' attention to the suspect without relating it to any specific event did not provide a basis for the officers' reasonable suspicion.
People v Reyes, 69 AD3d 523, appeal dismissed.
Cyrus R. Vance, Jr., District Attorney, New York City ( Susan Axelrod and Alan Gadlin of counsel), for appellant.
Office of the Appellate Defender, New York City ( Richard M. Greenberg, Heather L. Holloway and Rosemary Herbert of counsel), for respondent.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.
OPINION OF THE COURT
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal" (CPL 450.90 [a]; see People v Howard, 74 NY2d 943).