THE PEOPLE OF THE STATE OF NEW YORK v. THIERNO DIALLO (2023)

Darcel D. Clark, District Attorney, Bronx (Paul A. Andersen of counsel), for appellant.

The Bronx Defenders, Bronx (Elli Marcus of counsel), for respondent.

Order, Supreme Court, Bronx County (Guy H. Mitchell, J.), entered on or about March 14, 2022, which granted defendant's suppression motion, unanimously affirmed.

There is no basis for disturbing the suppression court's factual determinations.  The record supports the court's finding that an officer's testimony that he saw defendant walking along the street toward a marked police van, with what appeared to be a heavy object in his pocket, while clinching that pocket and appearing nervous, failed to establish a basis for anything more than a level one inquiry (see People v. Howard, 50 N.Y.2d 583, 589–590 [1980];  People v. DeBour, 40 N.Y.2d 210 [1976] );  People v. Cornelius, 113 A.D.2d 666, 669 [1st Dept 1986] ).  Based on the heavy object in defendant's pocket, the officers may have had an objective, credible reason to request information (see De Bour, 40 N.Y.2d at 223), but the officers were not justified in forcibly seizing defendant by chasing and apprehending him.  Defendant's flight, when accompanied by nothing more than the presence of an unidentifiable object in his pocket and his nervousness in the presence of a marked police van, did not create reasonable suspicion, because there was no founded suspicion of criminality before the flight (see People v. Holmes, 81 N.Y.2d 1056, 1057–1058 [1993] ).

M -4615—People v. Diallo

Motion to dismiss the appeal denied as academic.