IN RE: TYHEEM S. (2005)

By petition filed on June 22, 2005 respondent is alleged to have committed acts which, were he an adult, would constitute the crimes of Criminal Possession of a Weapon in the Third Degree, Criminal Possession of a Weapon in the Fourth Degree, and Possession of Pistol or Revolver Ammunition in violation of New York City Administrative Code § 10-131(I)(3).   In addition, petitioner also seeks an adjudication of juvenile delinquency based upon respondent's alleged violation of Penal Law § 265.05 which prohibits the possession of specific weapons by a person less than sixteen years of age.

Claiming to be aggrieved by an unlawful search and seizure, respondent has moved for an order suppressing the introduction of tangible property recovered from his person by police officers on the date of his arrest.

 With respect to tangible property, the Presentment Agency has the initial burden of going forward to show the legality of the police conduct, while respondent has the ultimate burden of proving that the evidence should be suppressed (People v. Di Stefano, 38 N.Y.2d 640, 652, 382 N.Y.S.2d 5, 345 N.E.2d 548;  People v. Pettinato, 69 N.Y.2d 653, 654, 511 N.Y.S.2d 828, 503 N.E.2d 1365).

In order to determine whether evidence should be suppressed, a hearing was conducted before this Court on August 17, 2005.   New York City Police Officer Richard Zacarese was the sole witness to testify.

Based upon the highly credible testimony of Police Officer Richard Zacarese, the Court makes the following findings of fact and conclusions of law.

Richard Zacarese has been a member of the New York City Police Department for the past six years.   For the past two years he has been assigned to the “Queens Gang Squad” which is a specialized unit primarily involved in surveillance of gang activity and the investigation of crimes involving gangs.   On June 15, 2005, Officer Zacarese was on routine patrol in an unmarked police vehicle along with his partners, Detective Ramos and Sergeant Figliese, who are also assigned to the Queens Gang.   The three officers were all wearing plainclothes.   At approximately 11:40 P.M., the officers were driving in the vicinity of 155-41 116th Road in Jamaica, Queens County, a part of a several block residential area which, according to Officer Zacarese, is well known for the presence of several gang “crews” and unlawful activity by gang members including several shootings since the winter of 2004-2005.   According to Zacarese, the weather on this evening was “warm and clear”.   At approximately 11:40 P.M. Officer Zacarese observed four young males standing stationary on the sidewalk in front of 155-41 116th Road where private vehicles were parked on both sides of this residential street.   Officer Zacarese testified that one of the three individuals was wearing “a red baseball hat”, another was wearing black and red trimmed sneakers and a red tee shirt and bandana, the other was wearing a “red skull cap” and “white sneakers”.   The fourth individual, subsequently identified as the respondent, Tyheem S., was observed to be wearing a hooded New York Mets long sleeve sweatshirt made of a “heavy material”.¹  One of the other individuals was wearing a “light jacket” and the other two were wearing “tee shirts”.²  According to Officer Zacarese, the area in which he observed the four individuals was “well lit” by street lights, house lights, and the headlights of passing cars, including the officers' vehicle, and he had an unobstructed view from the police vehicle.

Officer Zacarese, who was driving the police vehicle, stopped the car and as soon as he did so all four individuals “started to move” about and they moved forward and away from a fence against which they had been leaning.   Zacarese and his two partners exited their vehicle and as they did so, “respondent moved behind the other three individuals and came to a stop”.

As he approached the four individuals, Zacarese observed an undefined “bulge” in respondent's waistband area.   Zacarese stated that the item or object in respondent's waistband was pushing the sweatshirt he was wearing out and given the location of this bulge, Zacarese believed that respondent was carrying a weapon in his waistband.   As Zacarese approached the group he saw respondent walk away from behind the other three individuals where he had first moved when the officers arrived on the scene and Zacarese observed respondent move his right hand toward the bulge in his waistband and turn around to face towards the fence, causing the officer to fear for his safety.   While respondent was moving, the other three individuals continued to stand on the sidewalk and Zacarese heard one of the group stating “ ‘go inside, go inside’ ”.   Officer Zacarese reached the place where respondent was standing and as respondent moved his right hand towards the bulge in his waistband, Zacarese placed his hand over respondent's hand in a blocking action which prevented respondent from removing the item from his waistband.   As Zacarese put his hand over respondent's hand he felt the butt or handle of a firearm protruding from the front of respondent's waistband.   Zacarese recovered the firearm from respondent's waistband which the officer stated was a black .22 caliber Smith & Wesson semi-automatic pistol with brown grips that were partially covered in black tape and having a total length of nine inches.   The pistol fires long rifle ammunition and the gun had a loaded magazine inserted so that the gun could fire rounds.³  Respondent was then arrested for the crimes charged in this petition and his three companions were arrested for the offense of disorderly conduct by one of the other officers.

 “Any inquiry into the propriety of police conduct must weight the degree of intrusion it entails against the precipitating and attending circumstances” (People v. DeBour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562;  see, People v. Salaman, 71 N.Y.2d 869, 870, 527 N.Y.S.2d 750, 522 N.E.2d 1048;  People v. Hensen, 21 A.D.3d 172, 175, 799 N.Y.S.2d 444, 2005 N.Y. Slip Op. 05994, at 2).  “The touchstone of any analysis of a governmental invasion of a citizen's person under the Fourth Amendment and the constitutional analogue of New York is reasonableness” (People v. Batista, 88 N.Y.2d 650, 653, 649 N.Y.S.2d 356, 672 N.E.2d 581 [citation omitted];  see, People v. Wheeler, 2 N.Y.3d 370, 374, 779 N.Y.S.2d 164, 811 N.E.2d 531;  People v. Alvarez, 308 A.D.2d 184, 187, 764 N.Y.S.2d 42;  People v. Hensen, at 175, 799 N.Y.S.2d 444, supra ), and “whether police interference is reasonable requires a weighing of the government's interest against an individual's right to privacy and personal security” (People v. Wheeler, at 374, 779 N.Y.S.2d 164, 811 N.E.2d 531).

The decision in People v. DeBour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562, in which the Court of Appeals set out a four-tiered method representing the gradation of permissible police encounters with citizens in a public place and which correlates the degree of the officer's objectively credible belief with the permissible scope of his or her intervention, is applicable to this case (People v. Hollman, 79 N.Y.2d 181, 195, 581 N.Y.S.2d 619, 590 N.E.2d 204;  People v. Leung, 68 N.Y.2d 734, 736, 506 N.Y.S.2d 320, 497 N.E.2d 687;  People v. McIntosh, 96 N.Y.2d 521, 526, 730 N.Y.S.2d 265, 755 N.E.2d 329).

 Under the first tier of the DeBour framework, police may approach an individual for the purpose of requesting information, the least intrusive level of police inquiry, in the absence of any indication of criminality, provided that there is an objective and credible reason for doing so (People v. DeBour, at 213, 386 N.Y.S.2d 375, 352 N.E.2d 562;  People v. Hollman, at 189, 581 N.Y.S.2d 619, 590 N.E.2d 204;  People v. Reyes, 83 N.Y.2d 945, 946, 615 N.Y.S.2d 316, 638 N.E.2d 961, cert. denied 513 U.S. 991, 115 S.Ct. 492, 130 L.Ed.2d 403;  People v. Powell, 89 N.Y.2d 1063, 1064, 659 N.Y.S.2d 832, 681 N.E.2d 1278;  People v. Thomas, 19 A.D.3d 32, 33, 792 N.Y.S.2d 472).

 Such a request for information “is a general non-threatening encounter in which an individual is approached for an articulable reason and asked briefly about his or her identity, destination, or reason for being in the area.   If the individual is carrying something that would appear to a trained police officer to be unusual, the police officer can ask about that object” (People v. Hollman, at 181, 581 N.Y.S.2d 619, 590 N.E.2d 204;  see, People v. Ocasio, 85 N.Y.2d 982, 985, 629 N.Y.S.2d 161, 652 N.E.2d 907).   While an officer may not forcibly detain an individual as part of a request for information (People v. Howard, 50 N.Y.2d 583, 590, 430 N.Y.S.2d 578, 408 N.E.2d 908;  People v. Martinez, 80 N.Y.2d 444, 447, 591 N.Y.S.2d 823, 606 N.E.2d 951;  People v. May, 81 N.Y.2d 725, 728, 593 N.Y.S.2d 760, 609 N.E.2d 113), the officer may request that a person stop so that information can be requested (People v. Reyes, at 946, 615 N.Y.S.2d 316, 638 N.E.2d 961;  People v. Williams, 226 A.D.2d 750, 751, 641 N.Y.S.2d 856;  People v. Jones, 221 A.D.2d 998, 633 N.Y.S.2d 893).

 Under the second tier of DeBour, the common-law right of inquiry, the police may stop an individual without the use of force for the purpose of questioning that person where there is a founded suspicion of criminal activity (People v. DeBour, at 215, 386 N.Y.S.2d 375, 352 N.E.2d 562;  People v. Hollman, at 191, 581 N.Y.S.2d 619, 590 N.E.2d 204;  People v. Spencer, 84 N.Y.2d 749, 753, 622 N.Y.S.2d 483, 646 N.E.2d 785, cert. denied 516 U.S. 905, 116 S.Ct. 271, 133 L.Ed.2d 192;  People v. Battaglia, 86 N.Y.2d 755, 758, 631 N.Y.S.2d 128, 655 N.E.2d 169;  People v. Giles, 223 A.D.2d 39, 40-41, 647 N.Y.S.2d 4;  People v. Sanchez, 8 A.D.3d 504, 505, 778 N.Y.S.2d 521, lv. denied 3 N.Y.3d 711, 785 N.Y.S.2d 39, 818 N.E.2d 681).   The right of an officer to stop an individual for questioning necessarily includes directing that a person stop moving, which has been found not to constitute a seizure under the Fourth Amendment (People v. Bora, 83 N.Y.2d 531, 534, 611 N.Y.S.2d 796, 634 N.E.2d 168;  California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690).

 Under the third tier of DeBour, the police may forcibly stop, detain or pursue an individual if an officer has reasonable suspicion that a crime has been, is being, or is about to be committed (People v. DeBour, at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562;  People v. Leung, at 736, 506 N.Y.S.2d 320, 497 N.E.2d 687;  People v. Martinez, at 447, 591 N.Y.S.2d 823, 606 N.E.2d 951;  People v. May, at 728, 593 N.Y.S.2d 760, 609 N.E.2d 113;  People v. Sierra, 83 N.Y.2d 928, 929-930, 615 N.Y.S.2d 310, 638 N.E.2d 955).   The term reasonable suspicion is defined as that quantum of knowledge sufficient to induce an ordinarily prudent and cautions person under the circumstances to believe that criminal activity is afoot (People v. Martinez, at 448, 591 N.Y.S.2d 823, 606 N.E.2d 951;  People v. William II, 98 N.Y.2d 93, 98, 745 N.Y.S.2d 792, 772 N.E.2d 1150;  People v. Woods, 98 N.Y.2d 627, 628, 745 N.Y.S.2d 749, 772 N.E.2d 1107).

 Finally, under the fourth tier of DeBour, the police may forcibly stop and arrest an individual where there is probable cause to believe that an offense has been or is being committed (People v. DeBour, at 233, 386 N.Y.S.2d 375, 352 N.E.2d 562;  People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451;  People v. Hicks, 68 N.Y.2d 234, 238, 508 N.Y.S.2d 163, 500 N.E.2d 861;  People v. Yancy, 86 N.Y.2d 239, 245, 630 N.Y.S.2d 985, 654 N.E.2d 1233;  People v. Maldonado, 86 N.Y.2d 631, 635, 635 N.Y.S.2d 155, 658 N.E.2d 1028).

 While “the facts in suppression cases are not always neatly categorized” (People v. Wheeler, at 373, 779 N.Y.S.2d 164, 811 N.E.2d 531), the Court finds that he conduct of the police officers in this case was entirely lawful.   Police Officer Zacarese and his two partners from the Police Department's Gang Squad were on patrol on the night of June 15, 2005.   As members of the Gang Squad, they have particular responsibilities for detecting and investigating gang activity.   As the officers drove onto 116th Road in Jamaica, a residential street which is part of a several block area known for the presence of gangs and for illegal gang activity, he observed four young males standing together near a fence.   Three of these individuals were wearing red clothing, a color particularly associated with the “Bloods” street gang (e.g., Matter of Donovan B., 278 A.D.2d 95, 96, 717 N.Y.S.2d 180, lv. denied 96 N.Y.2d 709, 725 N.Y.S.2d 639, 749 N.E.2d 208).   When the four individuals observed the officers they moved away from a fence against which they had been leaning and towards the sidewalk as a group.   Although there was no indication that the four individuals were then engaged in criminal activity, given the time of night, the fact that three of the four people were wearing clothing of a color associated with membership in a notorious street gang, and the fact that they were in an area known to the officers to be frequented by gang members, there was an objective and credible reason for the officers to approach these four individuals to request information.   The furtive and apparently choreographed movements of the four individuals away from the fence after they apparently saw the three officers in their vehicle added to the suspicious circumstances.

 After the officers exited their vehicle, respondent then began to move behind the other three individuals and from a short distance away, Officer Zacarese, who had an unobstructed view of all four people, noticed a “ bulge” under respondent's sweatshirt in his waistband area.

 Because a waistband bulge is considered to be “a telltale of a weapon” (People v. DeBour, at 221, 386 N.Y.S.2d 375, 352 N.E.2d 562;  see, People v. Howard, 147 A.D.2d 177, 181, 542 N.Y.S.2d 536, app. dismissed 74 N.Y.2d 943, 550 N.Y.S.2d 275, 549 N.E.2d 477;  People v. Thomas, 258 A.D.2d 413, 414, 685 N.Y.S.2d 716, lv. denied 93 N.Y.2d 980, 695 N.Y.S.2d 66, 716 N.E.2d 1111;  People v. Chang, 275 A.D.2d 423, 712 N.Y.S.2d 624, lv. denied 95 N.Y.2d 909, 716 N.Y.S.2d 650, 739 N.E.2d 1155), Officer Zacarese clearly had at that point a common-law right to stop respondent and question him about the waistband bulge (People v. Thomas, at 414, 685 N.Y.S.2d 716;  People v. Smith, 267 A.D.2d 98, 699 N.Y.S.2d 407, lv. denied 95 N.Y.2d 804, 711 N.Y.S.2d 172, 733 N.E.2d 244;  Matter of Jamaal C., 19 A.D.3d 144, 797 N.Y.S.2d 13), including the right to touch respondent's waistband area in order to determine whether there was a weapon (see, People v. Prochilo, 41 N.Y.2d 759, 395 N.Y.S.2d 635, 363 N.E.2d 1380;  People v. Chestnut, 51 N.Y.2d 14, 21, 431 N.Y.S.2d 485, 409 N.E.2d 958, cert. denied 449 U.S. 1018, 101 S.Ct. 582, 66 L.Ed.2d 479;  People v. Russ, 61 N.Y.2d 693, 695, 472 N.Y.S.2d 601, 460 N.E.2d 1086).   Once Zacarese put his hand over respondent's hand and felt the butt or handle of a pistol there was probable cause to arrest him for possession of the firearm (People v. Bigelow, at 423, 497 N.Y.S.2d 630, 488 N.E.2d 451;  People v. Hicks, at 238, 508 N.Y.S.2d 163, 500 N.E.2d 861;  People v. Yancy, at 245, 630 N.Y.S.2d 985, 654 N.E.2d 1233;  People v. Maldonado, at 635, 635 N.Y.S.2d 155, 658 N.E.2d 1028).

Accordingly, it is hereby

ORDERED, that respondent's motion to suppress the introduction of the pistol at trial is denied.

This constitutes the decision and order of the Court.⁴

FOOTNOTES

1.   A photograph of respondent wearing the clothes work when he was observed on the street by Officer Zacarese was introduced in evidence at the hearing.

2.   The three individuals seen standing with the respondent were subsequently identified as Gary B., Brandon H. and Tyrell J.

3.   A photograph of the pistol was introduced into evidence at the hearing by the Presentment Agency.

4.   Edited for publication.

JOHN M. HUNT, J.