Defendant Bryan Contreras, charged with criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) and other related charges, moves to challenge the identification and physical evidence attributed to him. Defendant alleges that since the police lacked probable cause for his arrest, his identification and the gun allegedly recovered are fruits of the poisonous tree and are inadmissible at trial. The People oppose the motion, asserting that the police had probable cause to arrest him, and that any pre-arrest identification procedure was merely confirmatory, and the recovered weapon is admissible at trial.

This court conducted a combined Mapp/Wade/Dunaway hearing on October 28, 2025 (Mapp v Ohio, 367 US 643 [1961]; United States v Wade, 388 US 218 [1967]; Dunaway v New York, 442 US 200 [1979]). At the hearing, the People called two police officers as witnesses: Police Officer Kevin Crosby, formerly of the 42nd Precinct, and Police Officer Alex Durst, formerly of PSA 7. The defense did not call any witnesses. At the conclusion of the hearing, the court heard oral arguments from counsel and received applicable case law.

Based on the credible testimony, the applicable law, and oral arguments, the court makes the following findings of fact and conclusions of law.

On July 7, 2023, New York City Police Officers Kevin Crosby (Officer Crosby), Hilmee Kassim (Officer Kassim), and Sheikh Aktaruzzaman (Officer Aktaruzzaman) were members of a 42nd Precinct three-person Neighborhood Safety team. Working an 8 p.m. to 4 a.m. shift, the team wore the uniform of the day — a blue vest, black T-shirt, and blue cargo pants — and traveled in an unmarked vehicle, with Officer Aktaruzzaman driving, Officer Kassim in the rear passenger seat, and Officer Crosby in the front passenger seat. According to Officer Crosby, members of the Neighborhood Safety unit "address high crime areas, quality of life issues, guns, gun runs, things of that nature."

At approximately 1:50 a.m., the officers were on patrol in the vicinity of Claremont (Parkway) and Third Avenue, Bronx, New York, when Officer Crosby saw a male walking on Third Avenue towards East 171st Street. As the male passes by a well-lit, closed store, Officer Crosby notices a "L" shaped bulge at the male's waist. Officer Crosby testifies, believing the object to be a gun, he shines his flashlight at the male's midsection to better see the outline of the item. Officer Crosby states that he called out to the man; they made eye contact, but the male did not respond and continued walking. Officer Crosby testified that he had their car trail the male. As the car approached, Officer Crosby called out to the man again. As Officer Crosby exits the unmarked vehicle, the male takes off running, and Officer Crosby chases after him. The man runs across Third Avenue towards the New York City Housing Authority's (NYCHA) Morris II (Morris Houses) development, with Officer Crosby in pursuit. As Officer Crosby reaches the sidewalk on the other side of the street, he stops and picks up a dark-colored gun from the sidewalk that he saw the male discard, while the male continues running and enters 500 East 171st Street.

Officer Crosby, his partners, and other responding officers canvassed the building looking for the male but were unsuccessful. Officer Crosby then uses the DAS system to search the building.^[FN1] Officer Crosby said the DAS search returned "arrests, any complaints, domestic incidents, things of that nature, to find whoever you're looking for." The search also returned photographs of residents in the building. One of the photos was of the male Officer Crosby saw, with the "L" shaped bulge at his waist, the Defendant, Bryan Contreras. Thereafter, Officer Crosby consulted with the 42nd Precinct detective squad, who issued an active investigation card (I-card) for the Defendant.

In their investigation, the police retrieved video footage from a store on Third Avenue [*2]near Claremont Parkway that showed the Defendant, dressed in a dark-colored form-fitting short-sleeve tech shirt and medium blue skinny jeans. Detectives from the 42nd Precinct consulted with Police Service Area 7 (PSA) Officer Durst to assist in identifying the male in the video recovered from the store.^[FN2] Officer Durst identified the male in the video as Bryan Contreras. Officer Durst testified that he had several prior encounters with the Defendant, including responding to the Defendant's apartment, located in 500 East 171st Street. Additionally, the officer stated that between 2021 and 2024, he had observed Defendant numerous times in the area surrounding the Morris II housing development.

Officer Crosby and members of his team arrested Defendant on July 26, 2023, inside the Bronx Hall of Justice.

At a Dunaway hearing, the People have the initial burden of going forward to establish that the police had probable cause to arrest the Defendant (People v Dodt, 61 NY2d 408, 415 [1984]; People v Wise, 46 NY2d 321 [1994]; People v Berrios, 28 NY2d 361, 367 [1971]). To satisfy this burden, the People must introduce credible evidence that establishes the lawfulness of the police conduct (People v Carmona, 233 AD2d 142 [1st Dept 1996]; People v Quinones, 61 AD2d 765 [1st Dept 1978]). "In evaluating the police action, the court must determine whether it was justified at its inception and reasonably related in scope to the circumstances at the time" (People v De Bour, 40 NY2d 210, 215 [1976]). Once the People have met their initial burden, the Defendant has the ultimate burden of proving the illegality of the police conduct by a fair preponderance of the evidence (Berrios at 367; People v Pettinato, 69 NY2d 653, 654 [1986]).

The Court of Appeals in People v De Bour, 40 NY2d 210, 222-223 (1976), set forth a four-tier analysis to evaluate street encounters with the police. Level one permits an officer to approach an individual to request information so long as the request is supported by "some objective credible reason for that interference not necessarily indicative of criminality" (id. at 223). Level two, the common law right of inquiry, allows an officer to further inquire and "interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure" (id.). At level three, officers may forcibly stop and detain an individual upon reasonable suspicion that the person has committed, is committing, or is about to commit a felony or misdemeanor. Finally, level four authorizes officers to arrest a person upon probable cause that the person has committed a crime. Each progressive level authorizes greater police intrusion and therefore requires the officer to escalate suspicion (People v Hollman, 79 NY2d 181, 185 [1992]).

Here, the officers came upon the Defendant while on routine patrol. As observed from the store video, the Defendant stood out because there were no other pedestrians on the street and few vehicles in motion. At this point, the officers could do no more than approach the Defendant to request information, such as his name, address, or destination (People v Hollman; People v Cantor, 36 NY2d 106 [1975]; People v Saunders, 79 NY2d 181 [1981]). Furthermore, [*3]the Defendant was not obligated to respond to the officer (People v Howard, 50 NY2d 583 [1980]), and in fact, could have continued walking (People v Grunwald, 29 AD3d 33, 36 [1st Dept 2006]; People v Raggs, 58 Misc 3d 1229(A) (Sup Ct, New York County 2018]). However, the police may continue to observe the individual if they do not interfere with the person's liberty in any manner (People v Samuel, 50 NY2d 1035 [1980]; People v Howard). Thus, Officer Crosby was justified in following the Defendant to verify his initial observation.

Arguably, Defendant's ignoring of Officer Crosby's inquiry while blading his body away from the officer's view elevated the encounter from "founded suspicion" to that of "reasonable suspicion" (People v Wall, 237 AD3d 648 [Sup Ct, New York County 2025]). That said, Officer Crosby's use of a flashlight to illuminate Defendant's waist area was not an unreasonable intrusion that converted a proper observation into an impermissible search (see People v Ricciardi, 149 AD2d 742 [1989] [shining flashlight into a vehicle was not an illegal search]; People v Cruz, 34 NY2d 362 [1974], rearg granted and decision amended 35 NY2d 708 [1974] [use of flashlight to illuminate the interior of a car was not an unreasonable intrusion]). Once Officer Crosby saw a discernible "L" shaped bulge towards Defendant's midsection, his observations elevated the initial potential encounter from a level one request for information to a level four probable cause for arrest, bypassing both founded and reasonable suspicion. There is no requirement that an officer cycle through each level of De Bour. The rapidly changing circumstances of Officer Crosby's observations justified his focus on the Defendant (see People v Allen, 141 AD2d 405, 408 [1st Dept 1988]). "[T]he level of police intrusion was an appropriate response to the observations and beliefs of the officers involved" (People v Leung, 68 NY2d 734, 736 [1986]; People v De Bour, at 223).

At a Mapp hearing, the prosecution has the burden of presenting credible evidence to establish that the seizure of property was lawful (see People v. Dodt, at 415; People v. Berrios, at 367). To satisfy its burden, the prosecution must present credible testimony (People v. Carmona, at 144). Once the People have met their initial burden, the Defendant bears the ultimate burden of establishing, by a fair preponderance of the evidence, that the police conduct was illegal (Berrios, at 367). "[A]ny inquiry into the propriety of police conduct must weigh the interference it entails against the precipitating and attending conditions" (People v. De Bour, at 223 [1976)]. Here, once Officer Crosby was confident that the "L" shaped object in Defendant's waist was a weapon, he had probable cause to arrest Defendant and to recover any evidential items on his person. "Given that the initial approach and the subsequent pursuit and detention of defendant constituted legitimate, justifiable police conduct, manifestly the recovery of the gun discarded during flight was also lawful" (People v Leung, at 736 [ 1986]) (see also People v Berrios at 368, "no search at all occurred because the evidence was dropped by the defendant in the presence of the police officer").

At a Wade hearing, the prosecution has the burden of presenting credible evidence to establish the reasonableness of the police conduct and the lack of undue suggestiveness in the identification procedures (see People v. Dodt, at 415; People v. Berrios, at 367). To satisfy its burden, the prosecution must present credible testimony (People v. Carmona, at 144). Once the People have met their initial burden, the Defendant bears the ultimate burden of establishing, by a fair preponderance of the evidence, the illegality of the police conduct (People v. Berrios, at 367). Here, the People assert that the police did not conduct an identification procedure, or at most, Officer Durst's identification of Defendant from the store video was merely confirmatory in nature (see generally, People v Rodriguez, 79 NY2d 445, 452 [1992] [civilian's familiarity [*4]with defendant made identification impervious to police suggestion]). Though a police officer, Officer Durst's confirmatory identification should be subject to the same case-by-case analysis which examines "the length and quality of prior contacts between [the] witness and [the] defendant, but always requires a relationship which is more than 'fleeting or distant'" (People v Waring, 183 AD2d 271, 274 [2d Dept 1992], quoting People v Collins, 60 NY2d 214, 219 [1983]). The People offered testimony that Officer Durst had responded to Defendant's apartment on several occasions in his official capacity. Additionally, Officer Durst testified to having encountered the Defendant around 500 East 171st Street on numerous occasions between 2021 and 2024. Thus, the People have demonstrated that Officer Durst was sufficiently acquainted with Defendant, and that his identification of Defendant was impervious to suggestion.

Accordingly, as the People have established the police had probable cause for the arrest, Defendant's motion to suppress the identification and the physical evidence as the products of an illegal arrest is DENIED.