People v Campos (2025 NY Slip Op 25096)

PROCEDURAL SUMMARY

Appeal from a judgment of the Criminal Court of the City of New York, New York County (Kate Paek, J., at suppression hearing; Ann D. Thompson, J., at trial and sentencing), rendered October 15, 2018. The judgment, after a nonjury trial, convicted defendant of attempted criminal possession of a weapon in the fourth degree.

HEADNOTES

Crimes - Unlawful Search and Seizure - Inquiry by Police and Retrieval of Knife

Criminal Court properly denied defendant's suppression motion in a prosecution for attempted criminal possession of a weapon. Responding to a 911 call involving "harassment" inside a restaurant, police arrived and observed the visibly upset restaurant manager arguing with defendant in front of the restaurant. The manager pointed and gestured toward defendant, who immediately moved away in a "sidestep backwards" manner, conspicuously seeking to distance himself, despite the officer asking defendant to stop because the officer "wanted to speak to him." The police were justified in conducting a level one inquiry by attempting to question defendant to clarify the situation, or in conducting a level two inquiry under the founded suspicion that defendant was involved in criminal activity, and the words and actions of the officer did not convey to defendant reason to believe that he had been seized or placed in custody. As defendant kept moving back he slid next to a garbage can and dropped something inside, and continued moving away. Although the officer repeated "sir would you please stop," defendant ignored him and crossed the street, continually looking back at the officer following him. Police then recovered a knife with a serrated edge inside the garbage can. The knife dropped in the can was abandoned since defendant deliberately, not inadvertently, separated himself from it. Accordingly, defendant lost his right to object to its retrieval by police.

APPEARANCES OF COUNSEL

Legal Aid Society (Alyssa Gamliel of counsel) for appellant.

Alvin Bragg, District Attorney (Robert Butlien of counsel), for respondent.

Judgment of conviction (Kate Paek, J., at suppression hearing; Ann D. Thompson, J., at trial and sentencing), rendered October 15, 2018, affirmed.

The court properly denied defendant's suppression motion. There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v Prochilo, 41 NY2d 759, 761 [1977]). Responding to a 911 call involving "harassment" inside a McDonald's restaurant, police arrived and observed the visibly upset restaurant manager arguing with defendant in front of the restaurant. The manager pointed and gestured toward defendant, who immediately moved away in a "sidestep backwards" manner, conspicuously seeking to distance himself, despite the officer asking defendant to stop because the officer "wanted to speak to him."

Under these circumstances, the police were "justified in conducting a level one inquiry by attempting to question defendant to clarify the situation, or in conducting a level two inquiry under the founded suspicion that defendant was involved in criminal activity" (People v Reyes, 69 AD3d 523, 526 [1st Dept 2010], appeal dismissed 15 NY3d 863 [2010]; People v Walker, 55 AD3d 343 [1st Dept 2008], lv denied 11 NY3d 931 [2009]).

Contrary to defendant's contention, the words and actions of the officer "did not convey to defendant reason to believe that he had been ['seized' or] placed in custody" (People v Hernandez,{**87 Misc 3d at 11} 217 AD3d 460, 460 [1st Dept 2023], lv denied 41 NY3d 965 [2024]). The officer merely asked defendant to stop, which, standing alone, did not constitute a seizure (see People v Bora, 83 NY2d 531, 535-536 [1994]; People v Casimey, 39 AD3d 228, 228 [1st Dept 2007], lv denied 8 NY3d 983 [2007]), and did not interrupt the liberty of his movement (see People v Boland, 89 AD3d 1144, 1145 [3d Dept 2011], lv denied 18 NY3d 955 [2012]).

As defendant kept moving back he slid next to a garbage can and dropped something inside, and continued moving away. Although the officer repeated "sir would you please stop," [*2]defendant ignored him and crossed the street, continually looking back at the officer following him. Police then recovered a knife with a serrated edge inside the garbage can. Contrary to defendant's contention, the knife dropped in the can was abandoned since he deliberately, not inadvertently, separated himself from it (see People v Marrero, 173 AD2d 244, 245 [1st Dept 1991], lv dismissed 78 NY2d 969 [1991]). Accordingly, defendant lost his right to object to the police retrieval of said knife (see People v Flynn, 15 AD3d 177, 178 [1st Dept 2005], lv denied 4 NY3d 853 [2005]; People v Thomas, 203 AD2d 96 [1st Dept 1994], lv denied 83 NY2d 972 [1994]).

The court properly admitted the nontestifying victim's statement to a police officer that defendant threatened him with a knife as an excited utterance (see generally People v Johnson, 1 NY3d 302 [2003]). The statement by the restaurant manager, made within minutes after he called the police, was clearly precipitated by an event that was startling and traumatic; and the victim, described by police as angry, excited and agitated, was still visibly upset (see People v Brown, 177 AD3d 409, 409-410 [1st Dept 2019], lv denied 34 NY3d 1126 [2020]; People v Johnson, 129 AD3d 486, 486 [1st Dept 2015], lv denied 26 NY3d 1089 [2015]).

In any event, any error in the admission of the statement was harmless in light of the overwhelming evidence of defendant's guilt (see People v Crimmins, 36 NY2d 230 [1975]).