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OFFICER DID NOT HAVE GROUNDS TO PROCEED TO A LEVEL TWO INQUIRY, ASKING DEFENDANT IF HE HAD ANY WEAPONS OR DRUGS; SEIZURE WHEN DEFENDANT WALKED AWAY WAS ILLEGAL.

The Fourth Department reversed defendant’s conviction because it determined the suppression motion should have been granted. Although the arresting officer validly stopped the car in which defendant was a passenger because of tinted windows, validly asked about defendant’s identity and destination, and validly asked defendant to step out of the car, there was no valid basis for asking defendant if he had any weapons or drugs. The escalation of the officer’s questioning, based only on defendant’s nervousness and not on a grounded suspicion of criminal activity, was not justified. Therefore the officer’s seizure of defendant when defendant walked away and did not obey the officer’s command to stop was illegal. The cocaine, which was disposed of by the defendant during the illegal pursuit, should have been suppressed:

 

The officer testified at the suppression hearing that, when defendant responded to his level one inquiries, defendant appeared fidgety, grabbed at his pants pockets, looked around, and gave illogical and contradictory responses to the officer’s questions, which prompted the officer to ask defendant whether he had any weapons or drugs. With that question, the officer “proceed[ed] to the next level of confrontation, the common-law inquiry,’ which involves invasive questioning’ focusing on the possible criminality’ of the subject” … . That escalation was not supported by the requisite founded suspicion of criminality … . Defendant’s nervousness and the discrepancies in his explanation of where he was going did not give rise to a founded suspicion that criminal activity was afoot … .

Defendant responded to the officer’s level two inquiry by saying, “you’re harassing me,” and then walking away. The encounter escalated further to a level three seizure when the officer commanded him to stop, defendant continued to walk away, and the officer pursued defendant with a taser … . We reject the People’s contention that defendant’s conduct provided the officer with the requisite reasonable suspicion of criminality … . “Flight alone is insufficient to justify pursuit because an individual has a right to be let alone and refuse to respond to police inquiry” … . Finally, we conclude that defendant’s disposal of the bags containing cocaine during the officer’s pursuit was precipitated by the illegality of that pursuit … . Thus, the court erred in refusing to suppress the bags of cocaine. People v Hightower, 2016 NY Slip Op 01083, 4th Dept 2-11-16

 

CRIMINAL LAW (SECOND FELONY DRUG OFFENDER SENTENCE, COURT ABUSED DISCRETION BY NOT ORDERING TRANSCRIPTS TO ALLOW DEFENDANT TO CHALLENGE PRIOR CONVICTION)/SENTENCING (SECOND FELONY DRUG OFFENDER SENTENCE, COURT ABUSED DISCRETION BY NOT ORDERING TRANSCRIPTS TO ALLOW DEFENDANT TO CHALLENGE PRIOR CONVICTION)/SECOND FELONY DRUG OFFENDER (COURT ABUSED DISCRETION BY NOT ORDERING TRANSCRIPTS TO ALLOW DEFENDANT TO CHALLENGE PRIOR CONVICTION)

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SECOND FELONY DRUG OFFENDER SENTENCE: COURT ABUSED ITS DISCRETION BY PROMISING... DEFENDANT ENTITLED TO BE HEARD ON APPLICATION FOR RESENTENCING UNDER DRUG LAW...