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Officer Graham approached defendant


Upon defendant’s motion, the Court conducted a combined hearing. The People called three witnesses, a Detective assigned to the Police Commissioner’s office, and 2 Police Officers. The defendant’s father testified for the defendant.

A Queens County Criminal attorney said that an Officer overheard these radio reports. While in the vicinity of 156th Street and 113th Avenue, approximately three blocks from the shooting and six minutes after the original broadcast, the officer observed defendant, a male Black, 6’1″‘ tall and 185 lbs., leaning against an automobile, parked on the left side of the street. Defendant was wearing a dark blue hooded sweatshirt and blue jeans, and was the only male in the area. He had his hands in the pouch in the front of the sweatshirt, which sagged a little.

The Officer asked defendant to remove his hands from the pouch, which he did, at which point the officer noticed that the pouch sagged or drooped more and he observed a bulge. He reached and touched the area with his left hand and felt the cylinder of a gun and reached inside with his right hand, removed the gun and swung defendant around, placing him up against a car. A subsequent inspection of the weapon revealed four live rounds and one spent shell.

Defendant was arrested and brought to the Precinct. The detective arrived there at approximately 5:00 a.m. and interviewed defendant one hour later. She advised him of his Miranda warnings through the use of a printed rights form. Defendant acknowledged that he understood and agreed to waive his rights. He then wrote and signed a two page statement. In substance, he stated that, at approximately 1:00 a.m., he had telephoned his girlfriend near a store on Sutphin Boulevard. As he was talking, he found a gun, wiped dirt from it and put it into his sweatshirt. Five or ten minutes later, he heard sirens. After a police car stopped him, an officer grabbed his clothing and found the weapon.

The first level authorizes a police officer to approach to request information where there is “some objective credible reason * * * not necessarily indicative of criminal action”. The questioning should be brief and specific, relating, for example, to an inquiry as to the person’s identity, destination or reason for being in the area.

However, once the officer’s questioning becomes accusatory and the inquiry focuses upon the possibility of criminality, the stop passes beyond a mere request for information and to the second level, the common-law right to inquire. This level, which goes beyond a simple request for information, “is activated by a founded suspicion that criminal activity is afoot”. The questioning may be invasive and of an accusatory type, which would lead a person to reasonably believe that he is the focus of an investigation. Under this level, the officer may interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure.

The third level permits an officer to forcibly stop and detain a person for questioning where the police officer has reasonable suspicion that a suspect has committed, is committing, or is about to commit a crime. Reasonable suspicion has been defined as that “quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand”. The right to stop is a limited seizure and permits a significant interruption of a person’s liberty of movement. Included is the statutory right to frisk if the officer reasonably suspects himself to be in danger of physical injury by virtue of the detainee being armed.

The fourth and final level authorizes a police officer to arrest and take one into custody where the officer has probable cause to believe that the person has committed a crime or an offense in his presence.

Naturally, any determination of the permissible level of police intrusion necessitates a searching examination of the facts and circumstances surrounding the encounter. In our case, when Officer Graham approached defendant, he possessed sufficient facts to provide a reasonable suspicion that defendant had committed a crime and, therefore, was entitled to forcibly stop and detain him. As noted, when Saxe approached the crime scene, he was met by approximately 8-10 people from whom he was able to glean a description of the suspect and the direction he had run. Obviously, a crime had been committed, as evidenced by the body in the street. Just as obvious, contrary to defendant’s argument, the citizens who described the shooter and his route of escape were eyewitnesses to the criminal act.

In the haste of the moment, arriving at the scene of a homicide, with witnesses vocalizing descriptions of the suspect and his possible location, it is understandable that Saxe would not specifically ask if they had observed the shooting, nor is it unusual that he did not ascertain the identity of each of the informants. Unlike the situation where an anonymous caller reports a crime and gives a description, Officer had the opportunity to ascertain that a crime had been committed and could assess the reliability of the informants on the basis of their appearance and demeanor, factors which are crucial to any such assessment. Noteworthy, too, is the fact that there is no evidence that the witnesses attempted to conceal their identities but, as the Officer explained it, he “was busy getting a patrol supervise (sic), getting descriptions on the air and getting the guy to the hospital. I didn’t have time to get names and addresses or anything like that.”

The more intrusive frisk of a subject, stopped on the basis of reasonable suspicion, is justified if the officer “reasonably suspects that he is in danger of physical injury”. In addition to observations at the scene, the officer may be justified in frisking a suspect based upon the nature of the crime which had been reported. Thus, a radio report of an armed robbery in progress, at a specified location, with a specific description, would justify a forcible seizure of a suspect, and a protective pat down, in view of the officer’s reasonable belief that the defendant might be armed. Here, the report of a homicide by a shooting would reasonably permit the police to infer that a defendant who had been detained, shortly after the incident and in close proximity to it, might be concealing a deadly weapon. Thus, for their own safety, the pat down and subsequent seizure of the gun was proper in this case.

Notwithstanding that he was not as articulate as one may have wished, it appears that the officer was told by eight to ten people that at least some had observed the shooting and were able to provide a description of the suspect and his direction of flight. Thus, the basis of knowledge prong was satisfied here.

If a crime was committed using a gun, it may be presumed that there was really an intent to kill. Here in Stephen Bilkis and Associates, we have Queens County Gun Crime attorneys, who will represent you and appear for you during court hearings. We also have Queens County Criminal lawyers, who will ensure that your rights were protected.

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