The People of the State of New York v. Gerard Coggins, Defendant. (2026)

Defendant, Gerard Coggins, is charged with Criminal Possession of a Weapon in the Second Degree (see Penal Law § 265.03 [3]), and other related offenses.

Defendant moved to suppress the recovery of a firearm and all statements in this case based on an unlawful search and seizure. To that end, the court conducted a combined Dunaway, Mapp, and Huntley hearing to determine the propriety of the police actions taken in this matter. In lieu of oral summations, the parties were granted an opportunity to file written submissions.

The court has reviewed the hearing transcript, written submissions, the relevant statutes and case law. For the reasons discussed below, defendant's motion is granted.

Findings of Fact

The court finds the prosecution's witness to be credible and reliable.

The People's sole witness for this hearing, Police Officer Kevin Crosby (Officer Crosby), testified that he has been employed by the New York City Police Department (NYPD) for eight years and is currently assigned to the Bronx Auto Larceny Unit.

On July 22, 2024, at approximately 12:47 a.m., Officer Crosby was on patrol with Police Officer Kasim (Officer Kasim), in an unmarked vehicle. Officer Crosby, while in the front passenger seat of the patrol vehicle, observed defendant speaking to another individual from about 10 to 15 feet away, in the vicinity of East 174th Street and Fteley Avenue in Bronx County. According to Officer Crosby, defendant was carrying a blue lunch bag that appeared to contain a heavy object. The officer described that the pointed bottom of the bag looked consistent with the shape of a firearm barrel. He further testified that upon making eye contact with defendant, defendant appeared nervous, ended his conversation, and began to walk away. Officer Crosby approached defendant, shone his flashlight and immediately asked defendant, "What do you have in the bag?" Officer Crosby testified that defendant was not free to leave at that juncture. He recounted that when he approached defendant, he did not display a service weapon or make any threats or promises. In response to Officer Crosby's question, defendant stated that he had a gun for his protection. Subsequently, defendant was placed under arrest. Officer Crosby then testified that he passed the bag to Officer Kasim who searched inside the lunch bag and recovered a black firearm, among other items.

Discussion

It is axiomatic that in a suppression hearing, the People bear the burden of establishing the legality of the challenged police action (see People v Baldwin, 25NY2d 66 [1969]). If the prosecution meets its burden, defendant bears the ultimate burden of establishing the illegality of the police conduct by a preponderance of the evidence (see People v Berrios, 28 NY2d 361 [1971]).

The court now addresses, in turn, the discrete issues raised during the suppression hearing conducted in this matter.

Dunaway/Mapp Issues

The level of permissible intrusion by law enforcement during encounters with private citizens is governed by the principles articulated in the seminal case People v DeBour (40 NY2d 210 [1976]). DeBour established a four-tiered framework governing the encounters of police and private citizens, which balances public safety and the right to be at liberty. The Court of Appeals in People v Hollman (79 NY2d 181, 185 [1992]), clarified the distinction between a Level One and a Level Two encounter. The first level, a request for information, allows the police to approach and ask non-threatening questions to seek information about identity, address, and destination. This must be supported by an objective credible reason not necessarily indicative of criminality (see id.). The second level, a common-law right to inquiry, permits an officer to ask more pointed accusatory questions that would lead one to believe that they are suspected of a crime. To justify a Level Two encounter an officer must have a founded suspicion that criminality is afoot (see id.).

In this case, contrary to the People's assertion, Officer Crosby's pointed question constituted a Level Two stop under DeBour. Courts have found the question "what do you have in the bag," to be a common law right of inquiry requiring founded suspicion that criminal activity is afoot (see id.; People v White, 159 AD3d 741 [2d Dept 2018]; People v Goethe, 63 Misc 3d 1222(A) [Sup Ct Bronx County 2019]). "At each stage of an encounter, the level of police intrusion must be justified by the factual basis leading to it" (People v Grunwald, 29AD3d 33, 37 [1st Dept 2006], lv denied 6 NY3d 848 [2006]). Here, Officer Crosby testified that his suspicion was based on defendant's nervousness, walking away, and his observation that the lunch bag contained a heavy object that he believed to be a firearm.

However, "[i]nnocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand" (DeBour, 40 NY2d at 216). Ending a conversation and walking away from an area are actions that are "readily susceptible of an innocent interpretation" (People v Powell, 246 AD2d 366, 369 [1st Dept 1998]). Courts have held similar conduct -- walking at a quick pace in a high crime area, adjusting one's waistband, providing inconsistent statements, and walking with an arm stiffly against the body -- does not establish a founded suspicion of criminal activity because the behavior was readily susceptible of innocent interpretation (see id.). Likewise, walking away upon noticing police presence does not, without more, justify a greater level of intrusion (see People v Howard, 147 AD2d 177, 180 [1st Dept 1989]). Nervousness has also been found insufficient to indicate criminality (see People v Milaski, 62 NY2d 147, 156 [1984]; People v Diallo, 213 AD3d 472 [1st Dept 2023]; People v Barreras, 253 AD2d 369 [1st Dept 1998]).

Additionally, Officer Crosby testified that the lunch bag appeared to contain a heavy object that he associated with the barrel of a firearm. Courts have similarly recognized that the presence of a heavy object may be attributable to innocuous items (see DeBour at 221; Diallo, 213 AD3d 472; People v Cornelius, 113 AD2d 666 [1st Dept 1986]; People v Williams, 79 AD2d 147 [1st Dept 1981]). Here, the lunch bag is shown in Officer Crosby's body worn camera footage which was admitted into evidence. However, the pointed bottom of the lunch bag described by the officer is not readily apparent from the video. While the People argue that the officer possessed the requisite level of suspicion to stop defendant and pose the question, the First Department clarified that, "[b]ased on the heavy object," in the bag, "the officers may have had an objective, credible reason to request information," but does not necessarily justify a more intrusive level to inquiry (Diallo, 213 AD3d 472). Moreover, the Court of Appeals in Hollman held that a request to search a bag exceeds the scope of a Level One simple request for information (see Hollman, 79 NY2d at 191-192).

The Diallo case, which has similar factual circumstances as here, is persuasive. The First Department in Diallo held that there was no founded suspicion of criminality where the only observed circumstances were defendant's flight, nervousness, and an unidentified heavy object in his pocket (see Diallo at 472). The factual circumstances in this case are identical to those in Diallo. As such, the evidence presented at the hearing does not reflect objective facts confirming Officer Crosby's founded suspicion that criminality was afoot at the time he stopped defendant. Therefore, as in Diallo, the officer's inquiry was not justified.

Huntley Issues

It is the People's burden to prove beyond a reasonable doubt the voluntariness of a defendant's statements as a condition of their receipt at trial (see People v Huntley, 15 NY2d 72 [1965]; People v Guilford, 21 NY3d 205, 205-206 [2013]; People v Anderson, 42 NY2d 35, 38-39 [1977]). Evidence of a written or oral confession, admission, or other statements made by a defendant with respect to his or her participation or lack thereof in an offense may not be received in evidence against him or her in a criminal proceeding if such statement was involuntarily made (see CPL 60.45 [1]).

In this matter the statement made by defendant was a direct consequence of unlawful police conduct. Defendant's statement was in response to the officer's pointed question, for which the officer did not have founded suspicion that criminality was afoot. Statements obtained by unlawful police conduct or detention must be suppressed as fruit of the illegal stop (see People v Misuis, 47 NY2d 979 [1979]; People v Powell, 242 AD2d 500 [1st Dept 1997]).

Accordingly, as the stop and subsequent seizure were unlawful, all items and statements are suppressed as fruits of the poisonous tree (see Wong Sun v US, 368 US 817 [1961]).

Conclusion

Defendant's motion to suppress is granted in its entirety.

This constitutes the Decision and Order of the court.

Dated: April 17, 2026

Bronx, New York

Hon. Jay Y. Kim, A.J.S.C.

Jay Y. Kim, J.