PEOPLE v. BLACK (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Donald Leo, J.), rendered October 31, 2022, convicting him of attempted criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.  The appeal brings up for review the denial, after a hearing (E. Niki Warin, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is reversed, on the facts, the defendant's plea of guilty is vacated, that branch of the defendant's omnibus motion which was to suppress physical evidence is granted, the indictment is dismissed, and the matter is remitted to the Supreme Court, Kings County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.

According to testimony elicited at a suppression hearing, on July 20, 2021, at approximately 9:55 p.m., Officer Andrew Tofalli was a passenger seated behind the driver in an unmarked vehicle traveling westbound on Sterling Place in Brooklyn when he observed a group of three individuals walking down the sidewalk in the opposite direction.  Tofalli testified that two of the individuals were wearing white T-shirts and walking ahead of the defendant, who was wearing a black T-shirt.  Tofalli allegedly observed one of the individuals in white (hereinafter the initial target) adjusting his waistband.  Tofalli exited the vehicle and approached the group.  Upon approaching the group, the initial target lifted his T-shirt, showing his waistband to Tofalli.  Tofalli touched both sides of the initial target's waist.  During this interaction, Tofalli allegedly observed the defendant, who was standing approximately two feet directly behind the initial target, pull up his pants, causing his shirt to be pulled tight and revealing an L-shaped outline in his waistband.  Tofalli testified that he stated, “come over here,” and the defendant turned around and ran.  Tofalli and his fellow officers pursued the defendant on foot, caught the defendant, and searched him, resulting in the discovery of a firearm beneath the defendant's pants.  Tofalli's entire interaction, beginning with his exit from the vehicle through the defendant's capture, was not audible on a recording obtained from Tofalli's body-worn camera, which was admitted into evidence at the hearing, as Tofalli failed to activate his body-worn camera in accordance with police protocol.

Following the suppression hearing, the Supreme Court denied that branch of the defendant's omnibus motion which was to suppress physical evidence.  The defendant subsequently entered a plea of guilty to attempted criminal possession of a weapon in the second degree.

“On a motion to suppress, the People bear the burden of going forward to establish the legality of police conduct in the first instance” (People v. Brown, 198 A.D.3d 803, 805, 156 N.Y.S.3d 276).  “While great weight must be accorded the credibility findings of the hearing court, this Court has also observed ‘that in assessing credibility we should not discard common sense and common knowledge’ ” (People v. Harris, 192 A.D.3d 151, 163, 138 N.Y.S.3d 593, quoting Matter of Carl W., 174 A.D.2d 678, 679, 571 N.Y.S.2d 536 [internal quotation marks omitted]).  “ ‘The rule is that testimony which is incredible and unbelievable, that is, impossible of belief because it is manifestly untrue, physically impossible, contrary to experience, or self-contradictory, is to be disregarded as being without evidentiary value, even though it is not contradicted by other testimony or evidence introduced in the case’ ” (id., quoting People v. Maiwandi, 170 A.D.3d 750, 751, 95 N.Y.S.3d 361).  “Furthermore, this Court has consistently held that it ‘will not hesitate to refuse to credit testimony which has all appearances of having been patently tailored to nullify constitutional objections’ ” (id., quoting People v. Lebron, 184 A.D.2d 784, 784, 585 N.Y.S.2d 498).

“ ‘In order to justify police pursuit, the officers must have reasonable suspicion that a crime has been, is being, or is about to be committed’ ” (People v. Ravenell, 175 A.D.3d 1437, 1438, 107 N.Y.S.3d 408 [internal quotation marks omitted], quoting People v. Furrs, 149 A.D.3d 1098, 1099, 53 N.Y.S.3d 147;  see People v. Holmes, 81 N.Y.2d 1056, 1058, 601 N.Y.S.2d 459, 619 N.E.2d 396).  Reasonable suspicion exists where there is a “quantum of knowledge sufficient to induce an ordinarily prudent and cautious man [or woman] under the circumstances to believe criminal activity is at hand” (People v. Cantor, 36 N.Y.2d 106, 112–113, 365 N.Y.S.2d 509, 324 N.E.2d 872;  see People v. Dantzler, 208 A.D.3d 590, 591, 172 N.Y.S.3d 738).  “A suspect's flight alone or in conjunction with equivocal circumstances that might suggest a police request for information is insufficient to justify pursuit,” and “[p]ursuit is only authorized when flight is combined with circumstances indicating that the suspect might be engaged in criminal activity” (People v. Rhames, 218 A.D.3d 610, 612, 192 N.Y.S.3d 589;  see People v. Holmes, 81 N.Y.2d at 1058, 601 N.Y.S.2d 459, 619 N.E.2d 396;  People v. Ravenell, 175 A.D.3d at 1439, 107 N.Y.S.3d 408).

Here, the People failed to establish the legality of the police conduct in the first instance, as Tofalli's testimony was incredible as a matter of law and patently tailored to meet constitutional objections (see People v. Leon, 222 A.D.3d 998, 201 N.Y.S.3d 669;  People v. Harris, 192 A.D.3d at 164–165, 138 N.Y.S.3d 593;  People v. Lebron, 184 A.D.2d at 787, 585 N.Y.S.2d 498).  Tofalli's testimony that when the defendant pulled up his pants he was able to see an “L-shape” outline in the defendant's waistband while the initial target was standing two feet in front of the defendant directly between Tofalli and the defendant defies common sense and strains credulity.  Moreover, Tofalli's testimony was inconsistent with the notes he made in his memo book, arrest reports generated after the incident, and his testimony before the grand jury, none of which made any mention of the initial target (see People v. Rhames, 196 A.D.3d 510, 513, 149 N.Y.S.3d 550), and was further inconsistent with the recording obtained from Tofalli's body-worn camera, which revealed that prior to his interaction with the initial target, the defendant was not touching his pants, and does not depict the defendant's T-shirt tightening around an “L-shape” object.  Accordingly, under the circumstances presented, we find Tofalli's testimony unworthy of belief (see People v. Leon, 222 A.D.3d at 1000, 201 N.Y.S.3d 669;  People v. Harris, 192 A.D.3d at 164, 138 N.Y.S.3d 593).

Accordingly, the Supreme Court should have granted that branch of the defendant's omnibus motion which was to suppress physical evidence.  Therefore, the indictment must be dismissed, and the matter remitted to the Supreme Court, Kings County, for the purpose of entering an order in its discretion pursuant to CPL 160.50 (see People v. Rhames, 196 A.D.3d at 515, 149 N.Y.S.3d 550).

In light of our determination, we need not reach the defendant's remaining contention.

IANNACCI, J.P., WOOTEN, DOWLING and LOVE, JJ., concur.