IN THIS STREET STOP CASE, SOME OF THE POLICE OFFICERS’ TESTIMONY WAS REJECTED AS INCREDIBLE; THE PEOPLE DID NOT DEMONSTRATE THE LEVEL THREE ENCOUNTER WAS JUSTIFIED BY REASONABLE SUSPICION (SECOND DEPT).

The Second Department, dismissing the indictment, determined the People did not demonstrate the level three encounter with the defendant in the street stop was justified by reasonable suspicion. Some of the police officers’ testimony was rejected as incredible:

Officer Washington’s pursuit of the defendant and her attempt to grab him with her right hand were both level three actions requiring reasonable suspicion … . Setting aside those portions of Officer Washington’s account the Supreme Court properly disregarded as incredible, her testimony indicates that she began chasing and grabbing at the defendant in response to his flight. She did not, however, credibly describe anything more than equivocal circumstances in conjunction with the defendant’s flight, meaning her testimony was insufficient to justify police pursuit … . Officer Montano testified that the defendant dropped the gun before he fled, which in turn could justify Officer Washington’s pursuit … . But he also testified that Officer Washington was “trying to take her shield out as she [was] approaching [the defendant] to try to grab him” before the defendant dropped the gun or started to run. Officer Montano thus observed the defendant drop the gun and flee as a result of Officer Washington’s attempt to grab him before she had the reasonable suspicion necessary to do so. “Since this level three intrusion was not justified, it cannot be validated by the officer’s subsequent observation of the firearm” … . People v Rhames, 2021 NY Slip Op 04242, Second Dept 7-7-21