You are here: / / IN THIS STREET STOP CASE, THE POLICE OFFICER’S CLAIM TO HAVE SEEN...
,

IN THIS STREET STOP CASE, THE POLICE OFFICER’S CLAIM TO HAVE SEEN THE OUTLINE OF A GUN UNDER DEFENDANT’S SWEAT PANTS WAS DEEMED INCREDIBLE AS A MATTER OF LAW; THE PEOPLE THEREFORE DID NOT MEET THEIR “BURDEN OF GOING FORWARD” AT THE SUPPRESSION HEARING; THE GUN SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, reversing defendant’s possession-of-a-weapon conviction, determined the People did not meet their burden of going forward at the suppression hearing because the police officer’s (Desposito’s) testimony was not credible. The court went on to say that, even if Desposito’s testimony were true, the evidence did not provide reasonable suspicion for the street stop. Defendant was walking on the sidewalk. Desposito was in a moving car. Desposito claimed he saw the outline of a gun under defendant’s sweat pants and told defendant to stop. Defendant ran, was captured, and a gun was found. Because Desposito was in a moving car and his view of defendant was obscured by parked cars and another pedestrian, the court found his testimony insufficient to meet the “going forward” burden of proof:

… [T]he People failed to establish the legality of the police conduct in the first instance, as Desposito’s testimony was incredible as a matter of law and patently tailored to meet constitutional objections … . Desposito’s testimony that he was able to observe an “L-shaped object” beneath the defendant’s sweatpants as the police vehicle drove past the defendant strains credulity and defies common sense … . …

… [E]ven if Desposito’s testimony is credited as true, his observations did not constitute specific circumstances indicative of criminal activity so as to establish the reasonable suspicion necessary to lawfully pursue the defendant, even when coupled with the defendant’s flight … . People v Leon, 2023 NY Slip Op 06754, Second Dept 12-27-23

Practice Point: If a police officer’s suppression-hearing testimony attempting to demonstrate reasonable suspicion for a street stop is incredible as a matter of law, the People fail to meet their “burden of going forward” and the motion to suppress must be granted.

 

You might also like
SURROGATE’S COURT SHOULD HAVE CARRIED OUT WHAT DECEDENT CLEARLY INTENDED, DESPITE THE DEFECT IN THE MEANS CHOSEN TO EFFECT HIS INTENT.
MOTHER’S PETITION TO RELOCATE WITH THE CHILD SHOULD NOT HAVE BEEN GRANTED WITHOUT A HEARING, THE PETITION WAS GRANTED AFTER FATHER SCREAMED AT COURT PERSONNEL (SECOND DEPT).
MEDICAL RECORDS OF THE VICTIM OF SEXUAL ASSAULT SHOULD NOT HAVE BEEN MADE AVAILABLE TO THE PETITIONER, WHO WAS CONVICTED OF THE SEXUAL ASSAULT, PURSUANT TO PETITIONER’S FREEDOM OF INFORMATION LAW (FOIL) REQUEST, THE RECORDS ARE PROTECTED FROM DISCLOSURE BY THE PUBLIC HEALTH LAW, THE CIVIL RIGHTS LAW AND THE PUBLIC OFFICERS LAW (SECOND DEPT).
BANK DID NOT SUBMIT SUFFICIENT EVIDENCE OF ITS STANDING, ITS COMPLIANCE WITH CONDITIONS PRECEDENT IN THE MORTGAGE, OR ITS COMPLIANCE WITH THE NOTICE REQUIREMENTS OF THE RPAPL, THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
BRADY MATERIAL WAS WITHHELD, CROSS-EXAMINATION ABOUT A COMPLAINANT’S INCONSISTENT STATEMENTS WAS NOT ALLOWED; THE INQUIRY AFTER A POLLED JUROR INDICATED SHE MAY NOT HAVE AGREED WITH THE VERDICT WAS INSUFFICIENT (SECOND DEPT).
PLAINTIFF, WHO HAD PURCHASED 75% OF REAL PROPERTY FROM THE HEIRS OF THE ORIGINAL OWNER, SOUGHT PARTITION AND SALE; DEFENDANT, WHOSE MOTHER HAD PURCHASED THE PROPERTY, OWNED THE REMAINING 25%; UNDER THE UNIFORM PARTITION OF HEIRS PROPERTY ACT (UPHPA), PLAINTIFF WAS REQUIRED TO NEGOTIATE A SETTLEMENT IN GOOD FAITH, BUT DID NOT (SECOND DEPT).
PLACEMENT OF THE CHILD WITH THE MATERNAL GRANDMOTHER RATHER THAN WITH HER FOSTER HOME WAS NOT SUPPORTED BY THE RECORD (SECOND DEPT).
PLAINTIFF FIREFIGHTER’S MOTION FOR SUMMARY JUDGMENT IN THIS GENERAL MUNICIPAL LAW 205-a, LABOR LAW 27-a, SLIP AND FALL CASE WAS PROPERLY DENIED, PLAINTIFF’S OWN SUBMISSIONS RAISED QUESTIONS OF FACT ABOUT DEFENDANT’S NOTICE OF THE ALLEGED DANGEROUS CONDITION (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DEFENDANT’S MOTION PAPERS AND EXHIBITS RAISED A QUESTION OF FACT ABOUT... THE FEDERAL CRIME WHICH WAS USED TO ENHANCE DEFENDANT’S SENTENCE WAS NOT...