DECISION AND ORDER I. Background and Procedural History By indictment filed September 8, 2023, defendants are charged with two counts of criminal possession of a weapon in the second degree (PL §265.03 [1] [b] and [3]), both class C violent felonies, criminal possession of a weapon in the third degree (PL §265.02 [8]), a class D violent felony, criminal possession of a firearm (PL §265.01-b [1]), a class E felony, and criminal possession of a weapon in the fourth degree (PL §265.01 [1]), a class A misdemeanor. These charges are based on the allegations that on June 18, 2023, at approximately 1:30 a.m., at the intersection of Sutphin Boulevard and Liberty Avenue in Queens County. Defendants move to suppress property of an evidentiary nature recovered or seized from them, specifically a Smith & Wesson SD .40 caliber pistol containing six live rounds of ammunition in the magazine, on the grounds they were obtained without requisite probable cause under the Fourth Amendment to the United States Constitution and article I, §12, of the New York State Constitution, and the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution and article I, §6, of the New York State Constitution and, therefore, the fruits of an unlawful arrest. By decision dated March 26, 2024, this Court ordered that a Mapp/Dunaway hearing be conducted relative to the lawfulness of the arrest, as well as the admissibility of the firearms. On May 9, 2024, this Court commenced a combined Mapp/Dunaway hearing, continued it on June 27, 2024, concluded it on October 10, 2024, and reserved its decision. On October 31, 2024, this Court received supplemental memoranda of law. Based upon the evidence presented, the parties’ arguments, memoranda of law received from the parties, prior court proceedings, and documents on file with the court, defendants’ motion is GRANTED in all respects. II. Findings of Fact At the hearing, the People called three witnesses: New York City Police Department (NYPD) Police Officer Michael Dunn (PO Dunn) of Queens South Narcotics Division; NYPD Lieutenant Thomas Sorrentino (Lt Sorrentino) of the 113 Precinct; and NYPD PO Matthew Hurwitz (PO Hurwitz) of the 113 Precinct neighborhood safety team. Defendants did not call any witnesses. This Court finds the testimony of all officers credible to the extent indicated herein. Issues necessitating suppression are decided as a matter of law. Though not exhaustively reflective of the entire record before the court, this Court summarizes its findings of fact and conclusions of law as follows. PO Dunn, a ten-year veteran of the NYPD, testified that on June 18, 2023, at approximately 1:28 a.m., while working with his partner, Lieutenant DiPretta (Lt DiPretta), he was operating an unmarked police vehicle at the intersection of Liberty Avenue and Sutphin Boulevard in Queens County. While there, PO Dunn heard what he believed were gunshots. After hearing them, he received an NYPD Shotspotter radio notification by radio transmission indicating that approximately five shots were heard near the intersection of 150th Street and 105th Avenue in Queens County, which was approximately two blocks from Liberty and Sutphin. Responding to the 150th Street and 105th Avenue intersection, PO Dunn observed a male standing alone, appearing to be tucking something inside the front of his pants. Upon approaching him, PO Dunn observed him run to a dark BMW SUV and enter the rear passenger seat. PO Dunn then drove his vehicle in front of the BMW to conduct a car stop. Upon doing so, the BMW drove into PO Dunn’s police vehicle, pushing it to the side before fleeing at a high speed and damaging the power steering of PO Dunn’s vehicle. Nevertheless, PO Dunn pursued the BMW southbound on 150th Street. Using police radio frequency channel 103/107 (covering those sectors), PO Dunn described the vehicle, specifically a black BMW SUV, license plate LAH 7354, with front end damage and the direction it was traveling. While pursuing the BMW, PO Dunn lost visual contact near 154th Street and 112th Avenue. Based on his description, PO Dunn testified that such information was transmitted on the Citywide 4 and 113 Precinct police radio frequencies with the partial license plate “LAH.” Later, PO Dunn was informed by radio transmission that the 113th Neighborhood Safety Team stopped a vehicle in response to his radio transmission. Upon arriving at the location, PO Dunn observed defendants standing in handcuffs outside a black Mercedes-Benz and notified members of his team it was not the same vehicle he observed earlier that evening. Lt Sorrentino, a seventeen-and-a-half-year veteran of the NYPD, testified that on June 18, 2023, at approximately 1:28 a.m., while working with his partners, PO Sinclair and PO McCrane, he was the front passenger of an unmarked police vehicle in the vicinity of 125th Avenue and Sutphin Boulevard in Queens County. At that time, Lt Sorrentino received a radio transmission from the 103 Precinct Conditions Team indicating they were pursuing a black BMW traveling southbound on Sutphin Boulevard in response to a “shots fired” report. Lt Sorrentino and his partners, proceeded northbound on Sutphin Boulevard when he observed a black Mercedes-Benz sedan traveling southbound on Sutphin Boulevard at high speed make a quick turn onto 116th Avenue. Lt Sorrentino pursued it before losing sight on 116th Avenue as it turned onto the Van Wyck Expressway. As he did, Lt Sorrentino reestablished a visual of the black Mercedes. Then, by radio transmission, Lt Sorrentino indicated he was behind a black sedan stuck in traffic, which he believed was the subject of the shots fired report. Other units, including Sgt Scaglion, PO Hurwitz, and PO Valenjes, began pursuing the black sedan on the Grand Central Parkway (once the Van Wyck split with the Grand Central). During the pursuit, Lt Sorrentino received a partial license plate of the vehicle involved in the shots fired occurrence. He then noted — and communicated over the radio — that the license plate of the vehicle they were pursuing did not match. Nevertheless, Lt Sorrentino continued following the black Mercedes-Benz sedan because, as he explained: Originally it came over that it was a black BMW. We started following the vehicle onto the Van Wyck Expressway believing that was the vehicle that we originally saw. It wasn’t until we got further into us following it that’s when it gave us a different plate. I continued to follow it because no one confirmed with me that it wasn’t the vehicle. Q: What was it? A: No one confirmed with me that it was not the vehicle (Tr: 87, 9-16) Q: Why did you continue to follow that black Mercedes sedan? A: Well this was a serious job. It was a shots fired job cops, you know, sometimes we get make and models wrong and a Mercedes and BMW are very similar. So I wasn’t going to not continue following it until I got confirmation that it wasn’t the vehicle” (Tr: 75; 3-9) Q: And did you ever get confirmation that that black Mercedes sedan wasn’t the vehicle?” A: No. Q: Did you get it eventually? A: On scene, yes. (Tr: 75, 10-14) He did, however, ask the Borough Public Safety Team to confirm whether it was the correct vehicle. Eventually, they stopped the black Mercedes-Benz sedan. But once they did, Lt Sorrentino testified he received word that it was not the vehicle involved in the shots fired. PO Hurwitz, a five-and-a-half-year veteran of the NYPD, testified that on June 18, 2023, at approximately 1:35 a.m., while on patrol with his partners, PO Valinchus and Sgt Sgaglione, he was the driver of an unmarked police vehicle at the intersection of Baisley Boulevard and Rockaway Boulevard in Queens County. While on patrol, PO Hurwitz received a radio run informing him that officers were chasing a black BMW believed to have been involved in a “shots fired” occurrence. He received another radio transmission informing him that the initial pursuing officers had lost sight of the vehicle. Soon after, PO Hurwitz received word that Lt. Sorrentino was following a vehicle traveling northbound on the Van Wyck Expressway, during which he observed Lt. Sorrentino’s vehicle following a black vehicle. Although PO Hurwitz heard Lt. Sorrentino transmit a partial license plate (i.e., “LAH”) over the radio, he was too far from it to observe its license plate. Eventually, PO Hurwitz stopped the vehicle at 33rd Street and Queens Boulevard. On this, he testified: At that point because I have my radio in my hand, I do hear Lieutenant Sorrentino say over the radio, this might not be the car. Is this the car? And then after that, it’s very staticky. Q: Okay. So, at the time you pulled over the car, you understood that you were pulling over a Mercedes Benz not a BMW with a license plate that didn’t match and your lieutenant had said this might not be the car? A: Nobody had given us clarification. So, at that point, all we had was black B.M.W. and a partial plate. We were not — myself, excuse me, and Lieutenant Sorrentino was asking for clarification, which we did not get. (Tr: 170, 24-25; 171, 1-10). Observing it was a Mercedes-Benz, not a BMW, and knowing it may not be the correct vehicle, PO Hurwitz nevertheless approached it and assisted in removing defendants from the vehicle before searching it. Upon doing so, PO Hurwitz recovered a loaded Smith & Wesson SD .40 caliber pistol. The People offered a Google map photograph, two NYPD radio transmissions, and a copy of PO Hurwitz’s body-worn camera, and were received in evidence. III. Conclusions of Law A. Probable Cause to Stop Initially, the People have the burden of commencing a suppression hearing by presenting evidence of probable, or reasonable, cause establishing the legality of the police conduct (People v. Baldwin, 25 NY2d 66 [1969]; People v. Malinsky, 15 NY2d 86 [1965]). Once the People have met this burden, a defendant bears the burden of proving any illegality (People v. Berrios, 28 NY2d 361 [1971]; Baldwin, 25 NY2d 66). In sustaining their burden of establishing reasonable cause, the People must demonstrate that the attendant circumstances, coupled with defendants’ behavior, justified the arresting officers’ intrusion. Such intrusion, of course, must comport with the four-tier approach articulated in People v. DeBour (40 NY2d 210, 223 [1976]). DeBour’s first level of intrusion permits a law enforcement officer to approach a citizen and request information provided an objective, credible, and articulable reason to do so exists, not necessarily indicative of criminality. The second level, the common-law right of inquiry, permits a Momentary stop when there is a “founded suspicion that criminal activity is afoot” (DeBour, 40 NY2d at 223). Under the third level, an officer may forcibly stop and detain a person when they reasonably suspect the individual has been involved in criminal activity. Finally, an officer may affect a full-blown arrest when there is probable cause to believe that an individual has, is, or is about to commit a crime (DeBour at 223). Frequently, an officer will receive information that a crime has been committed and/or a particular vehicle was used in committing it. In determining whether such information amounts to reasonable suspicion, two factors are considered: 1) the specificity regarding an individual(s) and/or the vehicle, and 2) the spatial and temporal nexus between them and the crime location. As to the first factor, a police officer may stop a vehicle based solely on a transmitted description, provided it contains a sufficient degree of specificity. Examples of specificity include the license plate number (People v. Tyrell, 82 AD3d 1352 [3d Dept 2011]; People v. Sprinkler, 198 AD2d 313 [2d Dept 1993]); vehicle damage (People v. Schlau, 117 AD3d 461 [1st Dept 2014]; People v. Crawford, 201 AD2d 933 [4th Dept 1994]; People v. Torres, 145 AD2d 664 [2d Dept 1988]); or specific vehicle markings (People v. Fulton, 189 AD2d 778 [2nd Dept 1993]). Even a vehicle’s distinctive nature may provide reasonable suspicion (People v. Cooney, 137 AD3d 1665 [4th Dept 2016]; People v. Caponigro, 76 AD3d 913 [1st Dept 2010]). An officer conducting a vehicle stop based on reasonable suspicion, however, is limited to a brief period for the sole purpose of inquiring. Such detention includes a vehicle’s driver and any occupants (People v. Rainey, 49 AD3d 1337 [4th Dept 2008]). Once an inquiry is made and satisfactorily answered, its purpose is achieved. Any further detention, then, exceeds the permissible scope of conduct. Consequently, any contraband seized during such impermissible extension of the stop must be suppressed (People v. Peterson, 266 AD2d 738 [3d Dept 1999]; People v. Pena, 242 AD2d 545 [2nd Dept 1997]). Put another way, detention should cease when an officer is satisfied that a briefly detained individual has neither engaged in criminal activity nor uncovered evidence of it. And any evidence subsequently discovered must be suppressed (People v. Milaski, 62 NY2d 147 [1984]; see also People v. Chisholm, 180 AD2d 744 [2d Dept 1992]). Here, PO Hurwitz and his team stopped a vehicle matching the original description only to the extent that it was black — nothing else. The described vehicle was a black BMW SUV; they stopped a black Mercedes-Benz sedan. The described vehicle had front-end damage; they stopped one with no front-end damage. And the license plate transmitted by PO Dunn did not remotely match — not even partially. Put another way, their conduct was based on nothing more than a ubiquitous black vehicle near a ShotSpotter activation. That they were aware of amply dissimilar circumstances coincident with a paucity of specific information supporting a reasonable suspicion that it was the vehicle sought leaves one to ponder how they would not have immediately recognized it was not. Lt Sorrentino did but justified it as “a serious job…shots fired job, cops, you know, sometimes we get make and models wrong, and a Mercedes and BMW are very similar.” Perhaps this may explain why they initially followed the Mercedes, but it hardly explains why they stopped, approached, and seized it along with defendants. Astonishingly, they ignored the make, model, and partial license plate mismatch and the lack of front-end damage. They eschewed further investigation solely because “no one confirmed” that it was not the correct vehicle. As inexplicable as this was, PO Hurwitz’s removal of defendants from the vehicle after Lt Sorrentino arrived and confirmed it was not the correct vehicle is the pinnacle of perplexing. That it was not communicated to PO Hurwitz is of no consequence. If the fellow officer rule entitles officers to act based on information not personally known, it should undoubtedly impute such knowledge to them when not communicated. It is profoundly disturbing that officers here acted and continued to act merely because no one confirmed they should not. Establishing the lawfulness of police conduct by default is an anathema under any legal standard, let alone Fourth Amendment jurisprudence. Thus, their initial stop, approach, and seizure of the vehicle and defendants were patently unlawful. As such, the firearm and any other evidence obtained therefrom are suppressed. IV. Conclusion Accordingly, this court finds that viewing the evidence in the light most favorable to the People (see People v. Williams, 84 NY2d 925 [1994]; see also People v. Contes, 60 NY2d 620 [1983]), they failed to satisfy their burden of demonstrating that the officers’ seizure of the vehicle, defendants’ arrests, and firearm recovery were lawful. It was anything but. Defendants’ motion to suppress is therefore GRANTED in its entirety. This constitutes the decision and order of the court. Dated: January 22, 2025
