Under the instant indictment, the defendant has been charged with the crimes of Criminal Possession of a Weapon in the Second Degree and Criminal Possession of a Weapon in the Third Degree, arising from an incident alleged to have occurred on or about April 5, 2016 in the City of Yonkers, County of Westchester, State of New York.

By Decision and Order, filed and entered on August 15, 2016, the Supreme Court, Westchester County (Neary, J.), ordered that (1) a pre-trial hearing be conducted pursuant to Mapp v Ohio (367 US 643) and Dunaway v New York (442 US 200) to determine whether any search resulting in the seizure of physical evidence was conducted in violation of the defendant's rights under the Fourth Amendment to the United States Constitution, and (2) a pre-trial hearing be conducted pursuant to People v Huntley (15 NY2d 72) and Dunaway v New York (442 US 200) to determine whether any statements allegedly made by the defendant were involuntary [*2]within the meaning of CPL 60.45, and/or were obtained in violation of the defendant's rights under the Fourth and Sixth Amendments to the United States Constitution. In accordance therewith, this Court conducted a combined suppression hearing on October 10, 11 & 12, 2016 to determine the trial admissibility of the seized handgun, the seized ammunition magazine, and those statements attributed to the defendant by the People pursuant to CPL 710.30. During this combined hearing, Police Officers Richard DeVito, Anthony Intervallo, and Detective Neal Cromwell of the Yonkers Police Department (YPD) testified on behalf of the People, and Police Officer David Fraszka of the YPD and the defendant, Jose Pabellon, testified on behalf of the defense. Upon considering the testimony of all of these witnesses, I give credence to the testimony given by YPD Police Officers DeVito, Intervallo and Fraszka, and YPD Detective Cromwell, above that given by the defendant. Based upon the evidence adduced at this hearing, I make the following findings of fact:

On April 5, 2016, at approximately 2:45 PM, Police Officers Richard DeVito and David Fraszka were conducting a routine patrol in plainclothes and an unmarked patrol vehicle in the Nodine Hill area of the City of Yonkers in order to address recent gang and gun activity in that area. P.O. DeVito has been employed by the YPD for 21 years as a patrolman and has participated in between 50 and 100 gun arrests throughout his career. P.O. Fraszka was driving the patrol vehicle northeast on Linden Street at between 10 and 15 miles per hour, when P.O. DeVito observed the defendant standing on the sidewalk as he appeared to be preparing to cross the street in front of 43 Linden Street, an area known by these police officers to be a high crime area involving gangs, guns, drugs, robberies, assaults and stolen vehicles. The defendant was known to P.O. Fraszka and P.O. DeVito prior to this encounter, as he had been arrested by P.O. Fraszka in 2015 and had been seen in that area frequently by P.O. DeVito. As the defendant started walking across the street, P.O. DeVito observed him look in the direction of the patrol vehicle from a distance of between 30 and 35 feet, when he stopped walking and grabbed the right rear pants pocket of his denim jeans with his right hand before proceeding to walk across the street again at a quickened pace. Upon observing the defendant's actions, P.O. DeVito believed that there was a hard object in the right rear pocket of the defendant's jeans, as that pocket appeared to him to "sag a little".

After he had finished crossing Linden Street, the defendant ducked behind a parked vehicle - prompting P.O. DeVito to exit from the passenger side of the patrol vehicle and walk to the defendant's location - where he saw the defendant crouching with his right hand upon the right rear pocket of his denim jeans. At that time, P.O. DeVito recalled seeing what he described as "something metallic" sticking out from the defendant's right rear pants pocket, and then he called out "Yonkers Police". The defendant responded by walking away from P.O. DeVito, which prompted P.O. DeVito to yell again "Police. Stop.", after which the defendant accelerated his pace as he continued walking away from P.O. Devito. The defendant's walking pace was so quick that P.O Devito had to jog for approximately 43 feet to catch up to the defendant in front of 54 Linden Street. As he caught up to the defendant, P.O. DeVito reached out and grabbed the defendant by his left arm, halting his ability to continue walking away, and said "Police. Stop.".

Although both P.O. DeVito and P.O. Fraszka knew the defendant's identity prior to this encounter, P.O. DeVito then asked the defendant for his identification and his address which lead [*3]the defendant to initially respond that he lived at 43 Linden Street. The defendant then stated an alternate address while stuttering and speaking nervously, and while turning the right side of his body away from P.O. DeVito and P.O. Fraszka - seemingly trying to keep them from getting behind him. The defendant then reached into his left rear pants pocket, removed his wallet and handed it to P.O. DeVito. After P.O. DeVito had briefly looked at the defendant's wallet, he told the defendant that he would put it back into his pants pocket for him. However, as P.O. DeVito attempted to place the wallet into the defendant's pants, the defendant turned his body away between 2 and 3 times before P.O. DeVito was able to successfully place it into the defendant's rear left pants pocket. At that time, P.O. DeVito was able to observe 2 inches of the exposed barrel of a handgun protruding from the defendant's right rear pants pocket, which prompted him to motion to P.O. Fraszka for assistance as he removed a .380 handgun from the defendant's right rear pants pocket. As P.O. Fraszka grabbed the defendant and placed him under arrest, he heard the defendant ask "It's not a felony if it's not loaded, right ?". The defendant was then handcuffed and transported to the Detective Division of the Yonkers Police Department Headquarters (hereinafter, YPDDD) in the absence of any response or questioning.

Once seated upon a chair in the YPDDD's interview room at approximately 4:05 PM, the defendant was advised of his so-called Miranda rights by Det. Neal Cromwell from a pre-printed card which was admitted into evidence during this hearing as People's Exhibit No.1. Upon being asked to do so by Det. Cromwell, the defendant signed at the bottom of the card and Det. Cromwell signed his name, the date and the time upon the card as well. The defendant was then asked a series of questions for a few minutes while uncuffed and seated at a conference table in the YPDDD's interview room, when he stated, in substance, that the police had seized a gun from his pants pocket and an ammunition magazine from his coat pocket.

Thereafter, at approximately 5:13 PM, P.O. Anthony Intervallo was present during the booking process in the Central Booking Area of the YPDHQ, when he overheard the defendant speaking on a telephone at approximately 5:13 PM, saying "They caught me with that gun, Ma."

"On a motion to suppress physical evidence, the People bear the burden of going forward to establish the legality of police conduct in the first instance" (People v Hernandez, 40 AD3d 777, 778; see People v Berrios, 28 NY2d 361, 367-368). Of long-standing vintage dating back to 1976, the Court of Appeals established a graduated four-level test for evaluating the legality of police conduct in relation to street encounters with persons suspected of criminal wrongdoing in People v DeBour (40 NY2d 210). Under the first level, a police officer is permitted to request information from an individual so long as the request is supported by an objective credible reason, not necessarily indicative of criminal activity; whereas the second level, commonly known as the common-law right of inquiry, permits a somewhat greater intrusion and requires a founded suspicion that criminal activity is afoot (see People v DeBour, 40 NY2d at 223; see also People v Moore, 6 NY3d 496, 498-499; People v Hollman, 79 NY2d 181, 184). Characterized as level three, the greater intrusion of a forcible stop and detention of a suspect by the police must be supported by a reasonable suspicion that the suspect is committing, has committed, or is about to commit a crime (see People v DeBour, 40 NY2d at 223; see also People v Moore, 6 NY3d at 499). Finally, under level four, the arrest of a suspect is permitted based upon the existence of probable cause to believe that he or she has committed a crime (see People v [*4]DeBour, 40 NY2d at 223; see also People v Moore, 6 NY3d at 499; People v Hollman, 79 NY2d at 184).

At the outset, based upon P.O. DeVito's professional knowledge of the Linden Street neighborhood as an area known to be troubled by a high incidence of criminal activity involving gangs, guns, and crimes against persons and property, the Court finds that P.O. DeVito's observation of the defendant engaging in furtive actions and grabbing at what appeared to be a heavy object in his rear pants pocket provided him with an objective credible reason to approach the defendant while he was crouched behind a parked vehicle (see generally People v McCoy, 46 AD3d 1348, lv. denied 10 NY3d 813). Consequently, P.O. DeVito's initial encounter with the defendant, when he exited his patrol vehicle and approached the defendant on foot without his gun drawn and while the defendant was crouched behind a parked vehicle, to request information was justified under the attendant circumstances (see People v DeBour, 40 NY2d at 223).

Thereafter, as the defendant rose from his crouch and hurriedly walked away from P.O. DeVito when he approached, which precipitated P.O. DeVito's foot pursuit of him down Linden Street, the Court notes that it is well-settled that the police may legally pursue a fleeing suspect if they have "a reasonable suspicion that a crime has been, is being, or is about to be committed" (People v Holmes, 81 NY2d 1056, 1058). In this regard, "a suspect's flight alone, or even [when considered] in conjunction with equivocal circumstances that might justify a police request for information, is insufficient to justify pursuit because an individual has a right to be let alone and refuse to respond to police inquiry" (People v Holmes, 81 NY2d at 1058; see People v Sierra, 83 NY2d 928, 929; see also People v Ross, 251 AD2d 1020, 1021, lv. denied 92 NY2d 882). However, flight, when "combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit (People v Holmes, 81 NY2d at 1058; see People v Sierra, 83 NY2d at 929-930; see also People v Martinez, 80 NY2d at 447).

Here, P.O. DeVito testified that his foot pursuit of the defendant began when he walked up on him while he was crouched behind a parked vehicle and had hurriedly walked away from P.O. DeVito while ignoring his singular announcement of "police" and his command to "stop". Significantly, despite his participation in between 50 and 100 gun arrests throughout his 20 plus year career as a patrolman with the YPD, P.O. DeVito testified that as the defendant was rising from this crouched position, he observed "something metallic" sticking out from the defendant's right rear pants pocket, yet never offered any testimony that what he had observed appeared to him to be a gun, or that the defendant's repeated placement of his hand upon the seemingly "heavy" object in his rear pants pocket was, based upon P.O. DeVito's training and experience, indicative of gun possession (cf. People v Pines, 99 NY2d 525; see People v Clermont, 133 AD3d 612, 614; see also People v Fletcher, 130 AD3d 1063, 1064; People v Stephenson, 89 AD3d 872, 872-873; People v Henderson, 85 AD3d 663).

Notably, a scrutinizing examination of P.O. DeVito's hearing testimony reveals that his actions with respect to the defendant reflected his lack of a founded suspicion under level two of the DeBour standard, let alone a reasonable suspicion under level three of the DeBour standard, that the metallic object protruding from the defendant's right rear pants pocket was a gun. Specifically, P.O. DeVito testified, in sum and substance, that he pursued the defendant on foot after he rose from his crouched position without drawing his own handgun and without alerting [*5]P.O. Fraszka that he observed what he suspected to be a gun on the defendant's person. Furthermore, once P.O. DeVito caught up to the defendant and forcibly restrained him by grabbing him by the arm, he did not act in manner designed to protect himself and P.O. Fraszka from the defendant's use of any suspected handgun, but rather engaged in a colloquy with him about his residence and identification, then removed his eyes from the defendant to review the contents of his wallet, and then reached around the defendant's back while he was turning away to place the wallet into the defendant's rear left pants pocket. Consequently, whatever P.O. DeVito might have believed the "metallic" object to be, his testimony regarding what he observed and what he did does not suggest that he possessed any level of suspicion that same was a handgun, and "did not constitute specific circumstances indicative of criminal activity [which were sufficient] to establish the reasonable suspicion that was necessary to lawfully pursue the defendant, even when coupled with the defendant's flight from the police" (People v Clermont, 133 AD3d 612, 614; see People v Haynes, 115 AD3d 676, 676-677; see also People v Carmichael, 92 AD3d 687; People v Cady, 103 AD3d 1155; People v Stevenson, 7 AD3d 820, 821). Indeed, prior to restraining the defendant by grabbing him by his arm, P.O. DeVito's observations were equally susceptible of an explanation that was consistent with either innocence or guilt, and it is well-settled that actions which are "at all times innocuous and readily susceptible of an innocent interpretation . . . may not generate a founded suspicion of criminality" (People v Powell, 246 AD2d 366, 369, app. dismissed 92 NY2d 886; see People v Riddick, 70 AD3d 1421; see also People v DeBour, 40 NY2d at 216).

Based upon the adduced evidence, although P.O. DeVito had a valid legal basis for his initial encounter with the defendant, "there was nothing that made permissible any greater level of intrusion" (People v Howard, 50 NY2d 583, 590, cert. denied 449 US 1023), as P.O. DeVito possessed, at most, nothing more than a common-law right to inquire of the defendant under level two of the DeBour standard, which did not permit him to lawfully pursue the defendant, nor to forcibly restrain him by grabbing him by the arm as he attempted to walk away (see People v Sierra, 83 NY2d at 929; see also People v Holmes, 81 NY2d at 1058; People v Martinez, 59 AD3d 1071, 1072, lv. denied 12 NY3d 856; People v Davis, 48 AD3d 1120, 1121-1122; People v Carmichael, 92 AD3d at 688; People v Cadle, 71 AD3d 689). Accordingly, as the police lacked the requisite reasonable suspicion to pursue and restrain the defendant, P.O. DeVito's seizure of the handgun from the defendant's rear right pants pocket, and his seizure of the ammunition magazine from the defendant's jacket pocket violated the defendant's rights under the Fourth Amendment to the United States Constitution and must be suppressed.

Turning next to determine whether those statements allegedly made by the defendant which were noticed by the People pursuant to CPL 710.30 were involuntary within the meaning of CPL 60.45, and/or were obtained in violation of the defendant's rights under the Fourth and Sixth Amendments to the United States Constitution, this Court finds that since all three of the defendant's noticed statements were precipitated by the illegality of the pursuit and seizure of the defendant by P.O. DeVito, and not attenuated from those actions, the defendant's noticed statements must be suppressed as the "fruit of the poisonous tree" (Wong Sun v United States, 371 US 471, 488 [internal quotation marks omitted]; see People v Beckett, 88 AD3d 898, 900; see also People v Day, 8 AD3d 495, 496).

Based upon the foregoing, the defendant's respective applications seeking the suppression [*6]of the handgun and the ammunition magazine which were seized from his person, as well as that seeking the suppression of his noticed statements is hereby granted. Accordingly, the People will not be permitted to seek the introduction of such evidence on their direct case during the trial of this matter.

The foregoing constitutes the Opinion, Decision and Order of the Court.