Opinion
No. 1948/12.
10-07-2014
The PEOPLE of the State of New York v. Joshua SOSA, Defendant.
Geoffrey Stewart, Esq., New York, Appearing on behalf of the defendant. Nashonme Johnson, Assistant District Attorney, Office of the District Attorney, New York County, New York, Appearing on behalf of the People.
Geoffrey Stewart, Esq., New York, Appearing on behalf of the defendant.
Nashonme Johnson, Assistant District Attorney, Office of the District Attorney, New York County, New York, Appearing on behalf of the People.
Opinion
JILL KONVISER, J.
On April 28, 2014, this Court conducted a combined Dunaway/Huntley/Mapp hearing. Police Officer Julio Meyreles testified for the People. The defendant did not present any evidence. In lieu of oral argument, the defendant requested an opportunity to submit a legal memorandum with respect to the issues raised at the hearing. The defendant so submitted on June 17, 2014, and on July 22, 2014, the People filed their response. The defendant's motion is decided as follows.
Findings of Fact
Police Officer Julio Meyreles testified that he has been a member of the New York Police Department (hereinafter “NYPD”) for approximately eight and one half years, and is currently assigned to the Street Narcotics Enforcement Unit (hereinafter “SNEU”) of the 23rd Precinct. SNEU officers are responsible for patrolling high crime, drug-prone locations in the precinct, including several New York City Housing Authority developments. Meyreles testified that as an NYPD Officer, he is a “custodian” of Housing Authority properties, and is responsible for, inter alia, keeping them free of trespassers. Meyreles has frequently arrested individuals for narcotics offenses, as well as violent crimes, on Housing Authority properties and in other areas.
On August 23, 2011, Meyreles was working in plainclothes with his partner, Officer Michael Cintron—they were assigned to investigate narcotics-related activity in the precinct while riding NYPD mountain bicycles. At approximately 5:00 p.m. that day, Meyreles and Cintron were in the vicinity of the Jefferson Houses, a New York City Housing Authority development, located at 337 East 112th Street in Manhattan. The Jefferson Houses, Meyreles testified, are a drug-prone, high crime area, where violent crimes such as robberies, shootings, and assaults are not uncommon.
Meyreles was in the courtyard of the Jefferson Houses when he observed three men standing in front of one of the buildings while one of the three held the door open. Meyreles observed that the defendant and the individual holding the door open each had a laptop in hand—the third individual was pacing back and forth while on the telephone. As only “residents or individuals with a lawful purpose” are permitted to be on Housing Authority property, and the Authority's rules prohibit any individuals from “lingering in front of buildings or in the lobbies,” summonses may be issued for said conduct. Meyreles further testified that for security purposes, the doors of Housing Authority buildings are kept closed and locked. In order to gain access to the building, an individual must either have a key, or be “buzzed” in by a resident. As the individual with the defendant allowed at least one individual to walk through the open door, Meyreles was concerned that the three men were “letting people in the building” who “were not supposed to be going” inside. Meyreles watched the men for approximately five minutes—all three appeared to be “looking around”—one continued to pace, one continued to hold the door open. Meyreles testified that based on his training and experience, he believed the men were trespassing at best and acting as “steerers” in a drug operation at worst, directing people into the building to purchase drugs from other individuals involved in the operation.
At the hearing, Meyreles identified the defendant as the individual standing next to the man holding the door open.
Photographs of the location from Meyreles's vantage point were introduced into evidence at the hearing as People's Exhibits 1–7.
Meyreles approached the three men to ask why they were standing there and why they were holding the door open. Meyreles stopped a few feet in front of the men, made eye contact with the defendant, and asked, “what's up guys?” The defendant immediately turned and ran into the building. Meyreles dropped his NYPD bike and ran after the defendant. Meyreles testified that the defendant ran into the lobby and turned right down a hallway, where he lost sight of him and heard a door slam. He assumed that the defendant had gone into one of the apartments. Meyreles, having “no idea” where the defendant went, stopped running, and although he believed that the defendant had just gone into one of the apartments, he neither attempted to open any of the apartment doors nor knocked on any of the closed doors, as he did not have a “valid reason” to do so. Meyreles then turned to leave the building, and as he passed in front of the elevator on his way out of the building, he opened the elevator door, as was custom. Meyreles explained that checking the stairs and elevators in Housing Authority buildings was “part of” his “duties,” and that no matter his assignment, he checked both whenever in a Housing Authority building.
Although the elevator door contained a window, it was not in “good shape”—it was opaque—yet Meyreles did not think the elevator was at the lobby level.
Meyreles testified that this was the consistent practice of police officers patrolling Housing Authority buildings.
When Meyreles opened the elevator door, “to [his] surprise,” he saw the defendant inside of the elevator. Meyreles testified that it had not occurred to him that the defendant might have run into the elevator because it was a poor escape route, as it could take a while for the elevator to “leave,” and he thought the slamming of the door was that of an apartment. As Meyreles opened the door, the defendant, who was still holding the laptop in his hand, ran out of the elevator, “fast like he was breaking” a “football tackle” and ran directly into him. The laptop flew out of the defendant's hand, and the defendant kept saying, “it's not mine.” Meyreles, not knowing why the defendant was running and why the laptop had come flying out of his hand, told him to stop—the defendant did not. The defendant then reached into his waistband and “pull[ed] out a revolver.” The defendant did not point the gun at Meyreles, instead, the gun went “flying” as the laptop had. Meyreles testified that he did not know if the gun simply fell from the defendant's hand or if he threw it on purpose. The defendant repeated “it's not mine” of the gun several times. As the defendant attempted to run toward the lobby of the building, Meyreles tried to stop him. Meyreles was also trying to get his partner's attention because he did not know where the other individuals had gone, there was a gun on the floor, and he was wrestling with the defendant. Meyreles struggled with the defendant for one to two minutes. During that time, the defendant repeatedly said, “Officer, please don't do it.” As he struggled with the defendant, he could see his partner attempting to get into the lobby, but the door was locked. Meyreles continued to struggle with the defendant while trying to unlock the door to let his partner in, but he did not want to let go of the defendant as the gun was still on the floor. Meyreles was eventually able to unlock the door, and his partner aided him in handcuffing the defendant. Meyreles testified that his Sergeant arrived within a few minutes and recovered the gun and the laptop from the hallway floor.
Meyreles testified that during the arrest of a different defendant in an entirely unrelated case, he made a clerical error while preparing paperwork, indicating that the defendant in that case had made a statement to him, when, in fact, the defendant had made the statement to another officer.
Conclusions of Law
This Court credits the testimony of Police Officer Julio Meyreles. While the defendant asks this Court not to credit Meyreles's testimony, he failed to identify any testimony that was “contrary to reason or implausible.” People v. Wright, 176 A.D.2d 473 (1st Dept.1991). Indeed, nothing about Meyreles's testimony was “contrary to experience ... self-contradictory,” People v. Richard, 215 A.D.2d 601 (2d Dept.1995), or “inherently incredible,” People v. Vaneiken, 166 A.D.2d 308 (1st Dept.1990), particularly when, as here, the testimony was consistent and unwavering, even during cross examination. See People v. Vasquez, 166 A.D.2d 194 (1st Dept.1990) ; People v. Green, 53 AD3d 622 (2d Dept.2008) ; People v. Anderson, 185 A.D.2d 355 (2d Dept.1992).
Dunaway
The defendant argues that during this police-citizen encounter, Police Officer Meyreles lacked reasonable suspicion to believe that he had committed any crime and, thus, was not permitted to pursue him when he fled following the officer's approach. The People disagree, arguing that based on the quantum of knowledge possessed by Meyreles at the time of his encounter with the defendant, Meyreles had a founded suspicion that criminal activity was afoot. Additionally, the People contend that the defendant's flight ripened into reasonable suspicion justifying Meyreles's pursuit of him. This Court concludes that despite the somewhat unusual facts and dynamic circumstances present in this case, Meyreles's pursuit of the defendant was not permissible, and, thus, the police lacked probable cause for his arrest at the time of the pursuit.
Police-citizen encounters must be analyzed through the framework set forth by the Court of Appeals in People v. DeBour, 40 N.Y.2d 210 (1976). The graduated four-level DeBour test is by now easily recognizable. A request for information, or level one inquiry, is permissible when a police officer has an “objective, credible reason, not necessarily indicative of criminality” to request information from a citizen. People v. Moore, 6 NY3d 496, 498 (2006) (internal citations omitted). A level two inquiry, a/k/a the common law right to inquire, “permits a somewhat greater intrusion and requires a founded suspicion that criminal activity is afoot.” Id. Level three “authorizes an officer to forcibly stop and detain an individual, and requires a reasonable suspicion that the particular individual was involved in a felony or misdemeanor.” Id. at 498–99. Finally, level four—an arrest—requires probable cause to believe that the citizen has committed a crime. Id. at 499. Notably, although police officers may serve as custodians of New York City Housing Authority properties, that alone does not “eliminate the requirement that each level of intrusion be supported by the corresponding level of suspicion.” People v. Johnson, 109 AD3d 449 (1st Dept.2013).
The analysis, however, does not stop there. It is well-settled, of course, that “[p]olice pursuit of an individual significantly impedes the person's freedom of movement and thus must be justified by reasonable suspicion that a crime has been, is being, or is about to be committed.” People v. Holmes, 81 N.Y.2d 1056, 1057–58 (1993) (internal citations omitted). As a general rule then, a police officer may not pursue a citizen who flees pursuant to a level one inquiry, as the law in this State permits a citizen to reject a police officer's request for information. To hold otherwise would eviscerate the DeBour framework and “the right to inquire would be tantamount to the right to seize, and there would, in fact, be no right to be let alone.” Id. at 1058.
As the First Department recognized in People v. Chestnut, 69 A.D.2d 41, 45 (1st Dept.1979), however, “[i]mmutable legal abstracts, easily enunciated in an atmosphere conducive to research, reflection and deliberation are applied, less facilely, to the infinite vagaries of human activity, oft-times carried out in a caldron of emotion.” Indeed, the “central figure” in police-citizen encounters is the police officer whose conduct is being judged and who “is faced with the daily possibility that any incident might become a life or death situation, with little or no time for reflection, let alone deliberation.” Id. Of course, “[t]here are no bright lines separating various types of police activity.” People v. Bora, 83 N.Y.2d 531 (1994).
In the instant matter, the facts and circumstances do not lend themselves to easy placement within the DeBour framework, instead falling somewhere between a level one and level two inquiry. According to Meyreles's testimony, the Jefferson Houses, a New York City Housing Authority property, are a drug-prone, high crime area, where violent crimes such as robberies, shootings, and assaults are common. Meyreles, a SNEU Officer and member of the NYPD for some eight years and, as such, a custodian of Housing Authority properties, was patrolling the Jefferson Houses on an NYPD bicycle in the late afternoon of August 23, 2011. Meyreles testified that he observed the defendant and two others standing in front of the building while one of the men held the lobby door open. The defendant and the man holding the door open had laptops in their hands while the third man, pacing, appeared to make a telephone call. Additionally, the man holding the door open allowed at least one individual to enter the building's lobby without having to use a key or the intercom system. Over the course of some five minutes, the men remained in place, continually looking around. While a casual observer might consider this behavior to be innocuous or even neighborly, to a trained observer it appears more sinister. Indeed, Meyreles, a trained and experienced observer, testified that he believed that the men, the defendant included, could have been part of a larger drug operation, trespassing on Housing Authority property, or, at the very least, granting otherwise unauthorized individuals access to Housing Authority property. It does not, therefore, strain credulity to believe that Meyreles had a founded suspicion that some type of criminal activity was afoot. Pursuant to DeBour and its progeny, however, the defendant's conduct while perhaps “sufficiently suspicious, and inconsistent with that of a resident or guest,” provided only “an objective credible reason to ask defendant why he was in [front of] the building.” People v. Wighfall, 55 AD3d 347 (1st Dept.2008). In other words, under the prevailing case law, Meyreles was entitled only to approach the defendant and simply engage in a level one inquiry—to ask whether the defendant had a legitimate reason for being on Housing Authority property. See e.g. People v. Verges, 2014 N.Y. Slip Op. 06037 ; People v. Barksdale, 110 AD3d 498 (1st Dept.2013) ; People v. Lozado, 90 AD3d 582 (1st Dept.2011) ; People v. Hendricks, 43 AD3d 361 (1st Dept.2007) ; People v. Magwood, 260 A.D.2d 246 (1st Dept.1999) ; People v. Sanders, 172 A.D.2d 239 (1st Dept.1991) ; compare People v. Johnson, 109 AD3d 449 (1st Dept.2013) ; but see People v. Roque, 99 N.Y.2d 50 (2002) ; People v. Weldon, 171 A.D.2d 712 (2d Dept.1991). Thus, when the defendant fled from Meyreles before Meyreles even had the opportunity to complete the level one inquiry, Meyreles was not entitled to give chase. See People v. Howard, 50 N.Y.2d 583 (1980). Accordingly, the police lacked probable cause to arrest the defendant at that time.
Mapp
The foregoing notwithstanding, the People have demonstrated that the defendant's later abandonment of the laptop and gun occurred independently of any police illegality, and, therefore, suppression of those items is not warranted.
The Laptop
As a “lawful custodian” of Housing Authority properties, Meyreles was not only authorized to be in the building, but responsible for, inter alia, keeping it free of trespassers. See People v. Wannamaker, 93 AD3d 426 (1st Dept.2012) ; People v. Williams, 16 AD3d 151 (1st Dept.2005). Moreover, property seized pursuant to an unlawful arrest is not subject to suppression when a defendant abandons the property as part of “an independent act involving a calculated risk” undertaken “independent of the unlawful police conduct.” People v. Boodle, 47 N.Y.2d 398, 403 (1979). Thus, when a defendant makes “a conscious calculated choice” reflective of a “strategy” to relieve himself of property, the defendant's choice serves to dissipate any taint of the unlawful police conduct. People v. Grant, 164 A.D.2d 170, 174 (1st Dept.1990).
In the instant matter, Meyreles testified that after pursing the defendant into the lobby of the building, he lost sight of the defendant. At the same time, Meyreles heard a door slam. Assuming, therefore, that the defendant had entered one of several apartments located off the lobby, and, recognizing that he had no lawful basis to pursue the defendant into an apartment, Meyreles abandoned the chase and walked back towards the lobby of the building, passing the elevator on his way. As Meyreles was exiting the building, he testified that, as is his custom while patrolling any Housing Authority property, he opened the elevator door. As he did so, the defendant ran out of the elevator and barreled directly into him. A laptop computer flew out of the defendant's hands while he repeated to Meyreles, it's not mine. Meyreles's testimony makes plain that the defendant's actions—deliberately barreling into Meyreles when faced with his fortuitous reappearance, verbally disclaiming ownership of the laptop as it flew to the floor—demonstrated a strategy to rid himself of the laptop, albeit an ultimately unsuccessful one. Indeed, the defendant made a calculated decision to attempt to overpower Meyreles and abandon the laptop. Thus, as Meyreles had ceased pursuing the defendant and resumed his regular patrol duties, the defendant's concerted effort to abandon the laptop was independent of Meyreles's earlier unlawful conduct. See People v. Wesley, 290 A.D.2d 244 (1st Dept.2002) (holding that the defendant's decision to assault the police officer constituted “a break in the chain of events that would dissipate the taint' of any illegality”); People v. Elliot, 162 A.D.2d 609 (2d Dept.1990) (concluding that the defendant's discarding of property “was not a spontaneous reaction to the unlawful police chase, but was an independent act involving a calculated risk). As such, suppression of the laptop is not warranted.
Although Meyreles was not legally authorized to engage in a pursuit of the defendant into the building, his presence inside the building itself was authorized as, he, like all NYPD officers, serves as a custodian of New York City Housing Authority properties.
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The Gun
Nor is suppression of the gun warranted. While it is unclear whether the defendant threw the gun, or whether it simply dislodged from the defendant's hand, it is clear that the defendant abandoned the gun. Indeed, verbal disclaimer of ownership combined with the attendant circumstances may constitute abandonment. See People v. Ramirez–Portoreal, 88 N.Y.2d 99 (1996).
Here, the gun flew to the floor within seconds of the defendant's abandonment of the laptop. Moreover, as the gun flew from the defendant's hand, he repeatedly told Meyreles, it's not mine. Additionally, the defendant attempted to distance himself physically from it by making his way towards the lobby of the building. Thus, under the particular facts and circumstances of this case, the People have demonstrated that the defendant intended to abandon the gun. See generally People v. Anderson, 268 A.D.2d 228 (1st Dept.2000) ; People v. Wellington, 265 A.D.2d 213 (1st Dept.1999) ; People v. Gabriel, 264 A.D.2d 641 (1st Dept.1999) ; People v. Murray, 256 A.D.2d 116 (1st Dept.1998). Moreover, as explained earlier, Meyreles's pursuit of the defendant had ended before Meyreles encountered him in the elevator whilst performing routine patrol duties, and, thus, when the defendant abandoned the gun, it was not in direct response to Meyreles's unlawful pursuit. Accordingly, suppression of the gun is not warranted.
Huntley
The defendant moves to suppress statements he made during his encounter with Officer Meyreles-in substance, it's not mine and please don't do it. There is no question as to the voluntariness of the defendant's statements, however, as they constitute res gestae. See People v. Garcia–Lopez, 308 A.D.2d 366 (1st Dept.2003) ; People v. Fisher, 266 A.D.2d 308 (2d Dept.1999) ; People v. Copes, 200 A.D.2d 680 (2d Dept.1994) ; People v. Wells, 133 A.D.2d 385 (2d Dept.1987). Moreover, the defendant's unsolicited statements, clearly blurted out, and not in response to any police questioning, were entirely spontaneous. See People v. Norman, 77 AD3d 497 (1st Dept.2010) ; People v. Burton, 57 AD3d 261 (1st Dept.2008) ; see also People v. Vasquez, 235 A.D.2d 322 (1997) ; People v. Davis, 234 A.D.2d 88 (1st Dept.1996) ; People v. Tarleton, 184 A.D.2d 463 (1st Dept.1992) ; see generally People v. Rodriguez, 55 AD3d 351 (1st Dept.2008). Accordingly, the defendant's motion to suppress is denied.
Conclusion
This constitutes the Decision and Order of the Court.