On May 16, 2014, this court commenced a Mapp hearing. The People called two witnesses, Detective Jalin Bulding and Lieutenant Wilson Ortiz. The defense did not call any witnesses. The court finds the testimony of the officers to be credible. This court's findings of fact and conclusions of law are as follows.

In May of 2010, Lieutenant Ortiz was a sergeant assigned to the 43 Precinct. On May 17, 2010, at approximately 10:30 a.m., Lt. Ortiz received a telephone call from a citizen he knew and had spoken to on previous occasions. Although this individual was not a registered confidential informant, the lieutenant had this person's name and number stored on his phone and the lieutenant knew this individual as a "source of information." This individual asked Lt. Ortiz whether he had received a job about someone shooting a gun on Soundview Avenue at the Bronxdale Houses in the Soundview neighborhood (now renamed the Sotomayor Houses in [*2]honor of United States Supreme Court Justice Sonia Sotomayor).^[FN1] Lt. Ortiz responded that he did not because it was his day off and he was home. The caller stated that earlier that morning the caller saw a male shooting a gun up in the air and that the person then went into a building, changed his clothes and was now back outside. The caller added that if the police acted quickly they could catch him. The caller identified the shooter as a male Hispanic wearing a red hat, a red shirt, red sneakers and blue jeans.

Lt. Ortiz then called the 43 Precinct detective squad and asked Det. Tozzi whether they had received a job of shots fired earlier that morning. Det. Tozzi informed Lt. Ortiz that they received a job of shots fired at 1040 Soundview Avenue earlier that morning at about 8:00 a.m. The 911 caller identified the shooter as a male wearing a white hoody, red bandana and blue jeans. Lt. Ortiz then told Det. Tozzi about the call from his source and that the shooter was outside at that very moment. Although at the hearing Lt. Ortiz could not remember the ethnicity, location or clothing description provided to him by the caller, he did remember that he immediately relayed that information to Det. Tozzi which Det. Bulding remembered overhearing. Lt. Ortiz then called back his source and asked whether it would be okay for the lieutenant to give the source's phone number to the responding detectives. The source agreed because it was wasting time using Lt. Ortiz as the middleman. Lt. Ortiz then called back Det. Tozzi, gave him the source's phone number and advised them that the source was still observing the shooter outside.

When Det. Tozzi received the telephone call from Lt. Ortiz, Det. Tozzi was working with Detective Bulding, Detective Martin and Detective Banker. They were working the 8:00 am to 4:00 pm shift and had already received a few calls regarding shots fired at 1040 Soundview Avenue, Bronx, New York, but that no one was hit. Det. Tozzi was the lead detective for that investigation. The area was known for active drug and gun activity. They were aware of shootings in the past in the housing developments in that area. After speaking with Lt. Ortiz, Det. Tozzi informed his team of the new information and they all left the precinct to follow-up on the lead. Det. Bulding rode with Det. Banker in an unmarked car. He was wearing a suit with a bullet-proof vest over his shirt and his police shield around his waist. Detectives Tozzi and Martin left in another vehicle. Det. Bulding arrived at 1040 Soundview within one to two minutes. They drove northbound on Soundview Avenue from Bruckner Boulevard towards Watson but didn't see anyone matching the description. As they turned around Det. Bulding called Lt. Ortiz' source and advised him they didn't see the suspect. The source said the suspect was right there on the walkway of the housing development. Det. Bulding was coming back southbound on Soundview when he looked towards the walkway on his left and saw a male Hispanic walking with two other taller black males. They were on the same block as the earlier shooting at 1040 Soundview Avenue. The male, later identified as the defendant, was wearing a red baseball cap, a red T-shirt, red sneakers and blue jeans. He fit exactly the description relayed earlier by Lt. Ortiz. There was no one else in the area matching that description. As Detectives Bulding and Banker drove their vehicle onto the walkway approaching within 20 feet of defendant, the defendant turned around, looked back towards the police car and then started running away. He cut across a playground area by the walkway and headed towards a parking lot. At that time Det. Bulding noticed the defendant was carrying a white plastic bag in his hand. Neither detective at this point had exited their vehicle nor had they said anything to the defendant. Det. Bulding had not drawn his weapon and did not recall Det. Banker doing so. Both detectives exited their car and started to chase the defendant. As the defendant turned into the parking lot, Det. Bulding, who was approximately 15 feet away from defendant, observed the defendant throw the white plastic bag underneath one of the parked cars. Det. Bulding stopped and secured the white bag while Det. Banker continued to run after the defendant. Defendant was quickly apprehended at 1055 Rosedale Avenue, approximately a block away. The defendant was escorted back to where Det. Bulding was waiting, and Det. Bulding confirmed the defendant was the same person he was chasing from Soundview Avenue. Upon inspection, the white bag thrown by the defendant contained clothing, a 38 caliber revolver loaded with five live rounds and one spent shall casing, and an additional 26 rounds that were found inside of a sock.

This court must assess the propriety of this police initiated encounter under the four tiered framework set forth in People v DeBour, 40 NY2d 210 [1976], and reaffirmed in People v Hollman, 79 NY2d 181 [1992]:

"If a police officer seeks simply to request information from an individual, that request must be supported by an objective, credible reason, not necessarily indicative of criminality. The common-law right of inquiry, a wholly separate level of contact, is activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion.' Where a police officer has a reasonable suspicion that a particular person was involved in a felony or misdemeanor, the officer is authorized to forcibly stop and detain that person. Finally, where the officer has probable cause to believe that a person has committed a crime, an arrest is authorized" People v McIntosh, 96 NY2d 521, 525 [2001], citing People v Hollman, 79 NY2d at 184-185, quoting People v DeBour, 40 NY2d at 223).

Reasonable suspicion is the "quantum of knowledge sufficient to induce a reasonably prudent and cautious person under the circumstances to believe that criminal activity is at hand" (see People v Cantor, 36 NY2d 106, 112-113 [1975]).

The information received by Sgt. Ortiz from a known citizen informant, and relayed to Detective Tozzi, who relayed it to Detective Bulding, established the reasonable suspicion necessary to stop defendant. An officer in the field may presume the reliability of information received from a fellow officer (see People v McLaurin, 43 NY2d 902 [1978], reversing on dissenting opinion 56 AD2d 80, 84 [1st Dept 1977]). The informant was not anonymous but instead an identified citizen informant who knew Sgt. Ortiz well enough to call him at his home on his day off. An identified citizen informant is presumed reliable (see People v Brown, 288 AD2d 152 [1st Dept 2001], lv denied 97 NY2d 727 [2002]; People v Parris, 83 NY2d 342, 350 [1994]). The informant also provided a phone number to Sgt. Ortiz. Since the informant knew the police could reestablish contact with him or her, the informant exposed himself or herself to [*3]greater accountability via the risk of prosecution if the information provided by the informant proved false which further enhanced the informant's reliability (see People v Hicks, 38 NY2d 90, 94 [1975]). The informant's basis of knowledge was also clearly established since the informant stated he or she observed the defendant shooting a weapon in the air about two hours before defendant's encounter with the police. Where police action requires reasonable suspicion rather than probable cause, a lesser showing with respect to an informant's reliability and basis of knowledge suffices (see People v Herold, 282 AD2d 1, 4-5 [1st Dept 2001], lv denied 97 NY2d 682 [2001]).

The police had reasonable suspicion to stop the defendant based upon the totality of the circumstances confronting them including: a detailed description of the suspect provided by a known citizen informant, the defendant was the only person in the vicinity matching that description i.e., a male Hispanic wearing red sneakers, red shirt, red hat and blue pants, defendant's exact proximity to the site of the earlier shooting, and the police's ability to telephone the informant at the scene who promptly directed their attention to the suspect who was standing in the walkway a very short distance from the officers and exactly matching the description. These combined factors made it highly unlikely that the police had encountered a different person from the one described by the caller (see People v Appice, 1 AD3d 244 [1st Dept 2003], lv denied 1 NY3d 594 [2004], finding reasonable suspicion to justify stopping defendant based upon detailed description provided by face-to-face encounter with unidentified citizen informant where police found defendant in the exact location fitting the precise description provided by the informant; see also People v Lacy, 104 AD3d 422 [1st Dept 2013], lv denied 21 NY3d 1005 [2013]; People v Moss, 89 AD3d 1526, 1527 [4th Dept 2011], lv denied 18 NY3d 885 [2012]; People v. Rampersant, 272 AD2d 202 [1st Dept 2000], lv denied 95 NY2d 870 [2000]; People v Thomas, 224 AD2d 557 [2d Dept 1996], appeal dismissed 88 NY2d 886 [1996]).

Here, the specificity of the description outweighed the fact that the shooting occurred about two hours earlier since defendant was found in the exact location where the shooting occurred fitting the exact description and where the informant directed the police after the second call (see People v Applewhite, 298 AD2d 136 [1st Dept 2002], lv denied 99 NY2d 625 [2003]). The difference between the clothing description provided by the unidentified 911 caller and the informant is likewise satisfactorily accounted for since the informant observed the defendant change clothing immediately after the informant observed the defendant firing a weapon. Even if here the informant was considered anonymous because the informant's identity was not disclosed at the hearing, the informant was still reliable because of the informant's ability to accurately predict the future behavior and location of the defendant (see Navarette v California, ___ US ___, 134 S Ct 1683 [2014]; Alabama v White, 496 US 325 [1990]).

The police have not only the right but the duty to stop and inquire of a citizen if they have reasonable suspicion that the citizen committed a crime (see People v Landy, 59 NY2d 369 [1983]; People v Benjamin, 51 NY2d 267, 270 [1980]; People v Stroller, 42 NY2d 1052 [1977]). Even if the police lacked reasonable suspicion to justify stopping the defendant based upon the identified citizen informant's information corroborated by their confirming observations at the scene, they at the very least had the common law right to inquire (see People v Moore, 6 NY3d 496, 498 [2006]; People v McKinley, 101 AD3d 1747, 1748 [4th Dept 2012], lv denied 21 NY3d 1017 [2013]; People v Hollman, 79 NY2d 181, 191 [1992]; People v Stewart, 41 NY2d 65, 69 [*4][1976]).

Defendant's flight before the police could make any inquiry, in conjunction with other attendant circumstances at the scene, including defendant making eye contact with the police immediately before fleeing his two companions and his exact match to the description and location provided by the citizen informant, created, if it did not already exist, reasonable suspicion of criminality justifying their pursuit of the defendant (see People v Montilla, 268 AD2d 270 [1st Dept 2000], appeal dismissed 95 NY2d 830 [2000]; People v Lipsey, 247 AD2d 246 [1st Dept 1998], appeal denied 91 NY2d 974 [1998]). "Given the circumstances, the officers would have been, at a minimum, remiss in their duties if they failed to follow the defendant and elicit whether he was connected in any way with the shots" (see People v Blackwell, 206 AD2d 300, 301 [1st Dept 1994], appeal dismissed 85 NY2d 851 [1995], where police after hearing gunshots lawfully pursued defendant who fled in opposite direction after making eye contact with police).

Here, defendant's immediate flight after making eye contact with the police warranted the inference that he recognized the unmarked police car as a police vehicle (see People v Byrd, 304 AD2d 490 [1st Dept 2003], lv denied 100 NY2d 579 [2003]; People v Randolph, 278 AD2d 52 [1st Dept 2000], lv denied 96 NY2d 762 [2001]). Defendant fled his two companions by running across the playground off the walkway before the police exited their vehicle and before they said anything. The police were engaged in surveillance not pursuit immediately prior to defendant's flight (see People v Steinbergin, 4 AD3d 192 [1st Dept 2004], lv denied 3 NY3d 648 [2004], cert denied 543 US 1159 [2005], habeas corpus dismissed 2007 WL 1987953 [US Dist Ct, SD NY 2007]).

Since the police pursuit of defendant was justified, his abandonment of the bag containing the weapon was not caused by any illegal police conduct (see People v Martinez, 80 NY2d 444, 448 [1992], citing People v Leung, 68 NY2d 734, 736-737 [1986]). The police had the right to open the bag abandoned by the defendant. Discovery of the weapon and ammunition in the bag provided probable cause for defendant's arrest.

Reasonableness is the touchstone of any inquiry into the propriety of police conduct in an encounter between the police and a citizen (see People v Batista, 88 NY2d 650, 653 [1996]). After weighting the degree of intrusion of the police conduct in this case against the precipitating and attending circumstances, this court finds that the police conduct in this case was reasonably related in scope and intensity to the level of information available to the police at the time they acted (see People v DeBour, 40 NY2d at 223; People v Cantor, 36 NY2d at 111).

Defendant's suppression motion is, therefore, in all respects denied.

This opinion shall constitute the decision and order of this court.[*5]
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