People v Gibson, 2024 NY Slip Op 02934 [227 AD3d 1105]

May 29, 2024

Appellate Division, Second Department

[*1]

The People of the State of New York, Appellant,

v

Shaquill Gibson, Respondent.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy Fitzpatrick Talcott, and Rebecca Nealon of counsel), for appellant.

Patricia Pazner, New York, NY (Leila Hull of counsel), for respondent.

Appeal by the People from an order of the Supreme Court, Queens County (Stephanie Zaro, J.), dated November 29, 2021, which, after a hearing, granted those branches of the defendant’s omnibus motion which were to suppress physical evidence, identification evidence, and his statements to law enforcement officials.

Ordered that the order is affirmed.

The defendant was indicted on various charges, including robbery in the first degree and criminal possession of a weapon in the third degree. In an omnibus motion, the defendant moved, inter alia, to suppress physical evidence, identification evidence, and his statements to law enforcement officials. At a suppression hearing, a police officer (hereinafter the testifying officer) testified that, on December 3, 2020, at approximately 4:40 p.m., he heard a radio transmission that an individual had been robbed by three Black men wearing all-black clothing and carrying firearms. Within approximately five minutes of the radio transmission and approximately five blocks from the crime scene, the testifying officer observed two Black men walking; one of them, the defendant, was wearing a black jacket with a fur-lined hood and blue jeans.

Upon requesting a more detailed description and receiving one that matched the clothing of the defendant, the testifying officer approached the defendant with his gun drawn, yelled at the defendant to get on the ground, and handcuffed the defendant. Multiple other officers arrived almost immediately, and none responded to the defendant’s inquiries regarding what he had done wrong. The testifying officer asked the defendant if he had anything on him, to which he admitted to having a knife. The testifying officer reached into the defendant’s pockets and recovered the knife and a cell phone. The officers then pulled the defendant to his feet and flanked him for a show-up identification, during which the complainant identified the defendant. The entire encounter took less than 10 minutes.

The Supreme Court determined that the police had effectuated an arrest without probable cause and granted those branches of the defendant’s omnibus motion which were to suppress physical evidence, identification evidence, and his statements to law enforcement officials. The People appeal. [*2] On a motion to suppress physical evidence, the People have the burden of establishing that the police conduct was legal in the first instance ( see People v Harris , 192 AD3d 151 , 157-158 [2020]). The authority of the police to engage with the public in a law enforcement capacity, absent a warrant, is assessed under the four-tiered analytical framework set forth in People v De Bour (40 NY2d 210 [1976]). “ '[L]evel one permits a police officer to request information from an individual and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality; level two, the common-law right of inquiry, permits a somewhat greater intrusion and requires a founded suspicion that criminal activity is afoot; 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; level four, arrest, requires probable cause to believe that the person to be arrested has committed a crime’ ” ( People v Dubuisson , 206 AD3d 757 , 758 [2022], quoting People v Moore , 6 NY3d 496 , 498-499 [2006]; see People v De Bour , 40 NY2d at 215-220).

Contrary to the determination of the Supreme Court, we find that the defendant’s initial detention for the purpose of conducting a show-up identification procedure did not constitute a de facto arrest, as the detention was brief and occurred at the location where the defendant was stopped ( see People v Hicks , 68 NY2d 234, 241-242 [1986]; People v Albert , 217 AD3d 776 , 776 [2023]). Furthermore, the fact that officers approached the defendant with weapons drawn and the fact that the defendant was handcuffed did not elevate the initial encounter into an arrest, as the officers had been informed that an armed robbery had occurred nearby ( see People v Rosario , 94 AD2d 329, 339 [1983]).

Accordingly, in determining that the defendant’s initial detention was not a de facto arrest, we find, as conceded by the People, that the encounter instead rose to a level three forcible stop and detention. “An investigative detention is constitutionally permissible only where it is based upon reasonable suspicion of criminal activity” ( People v Williams , 73 AD3d 1097 , 1098 [2010]). “Reasonable suspicion is that quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand” ( People v Rhames , 196 AD3d 510 , 512 [2021] [internal quotation marks omitted]). Contrary to the People’s contention, the officers did not have a reasonable suspicion that the defendant was involved in a felony or misdemeanor, as “[i]t has consistently been held that . . . general descriptions are not sufficient to constitute reasonable suspicion” ( People v Dawkins , 163 AD2d 322, 324 [1990]). The general description of the suspect’s clothing here was insufficient to permit the police to detain the defendant, especially where the defendant exhibited no other indicia of criminality ( see People v Hargroves , 296 AD2d 581, 582 [2002]; People v Yiu C. Choy , 173 AD2d 883, 884 [1991]).

Accordingly, those branches of the defendant’s omnibus motion which were to suppress physical evidence, identification evidence, and his statements to law enforcement officials were properly granted. Barros, J.P., Miller, Ford and Ventura, JJ., concur..