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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 36
The People &c.,
            Appellant,
        v.
William Brown,
            Respondent.
-----------------------
No. 37
The People &c.,
            Appellant,
        v.
Patrick Thomas,
            Respondent.


Case No. 36:
          David M. Cohn, for appellant.
          Bruce D. Austern, for respondent.
Case No. 37:
          David M. Cohn, for appellant.
          Hector Gonzalez, for respondent.



MEMORANDUM:
          The appeals should be dismissed for failure to fulfill
the requirements of CPL 450.90 (2) (a).
          The Appellate Division, with two Justices dissenting,
determined that Supreme Court should have suppressed the show-up
identification of defendant William Brown (115 AD3d 38 [1st Dept

                              - 1 -
                               - 2 -                  Nos. 36 & 37

2014] and the show-up identification of and property seized from
defendant Patrick Thomas (115 AD3d 69 [1st Dept 2014]) because
the police lacked reasonable suspicion to stop and detain them.
Accordingly, the court reversed the judgment of conviction and
sentence in each case, granted defendants' respective motions to
suppress and remanded for a new trial preceded by an independent
source hearing.   One of the dissenting Justices granted both
defendants leave to appeal to us.
          Whether the circumstances of a particular case rise to
the level of reasonable suspicion presents a mixed question of
law and fact (see e.g. People v Howard, 74 NY2d 943 [1989]
[dismissing an appeal from an Appellate Division order of
reversal involving the mixed question of whether the police
harbored a reasonable suspicion that the defendant was about to
commit a crime]).   Because the Appellate Division's reversals
were thus not "on the law alone or upon the law and such facts
which, but for the determination of law, would not have led to
reversal" (CPL 450.90 [2] [a]), these appeals are not authorized
to be taken.
          While acknowledging that "determinations as to
reasonable suspicion typically present a mixed question of law
and fact," the dissent cites People v McRay (51 NY2d 594 [1980])
for the proposition that these cases instead involve a straight-
up question of law -- namely, "the minimum showing necessary to
establish reasonable suspicion" (dissenting op at 1 [internal


                               - 2 -
                                - 3 -                  Nos. 36 & 37

quotation marks omitted]).   In McRay, though, the Appellate
Division reversed the suppression court on the ground that the
People's proof was insufficient as a matter of law to support
probable cause to arrest (id. at 605).    When we disagreed and
reversed, we therefore remitted to the Appellate Division for
factual review, emphasizing that an inference of probable cause
was permitted, but not required, on the facts established (id. at
605, 606).   Here, by contrast, the Appellate Division reversed
the suppression court because, when exercising its independent
fact-finding powers, it drew a different inference from the
established facts, thus deciding a mixed question of law and
fact.   The dissenting Judge strongly disagrees with the Appellate
Division.    But the views of individual Judges of this Court on
the merits of defendants' suppression motions are beside the
point because the Criminal Procedure Law simply does not vest us
with jurisdiction to entertain these appeals.




                                - 3 -
People v Brown & People v Thomas
No. 36 & 37




PIGOTT, J. (dissenting):
          Although determinations as to reasonable suspicion
typically present a mixed question of law and fact, where the
issue presented involves the "minimum showing necessary to
establish" reasonable suspicion, "a question of law is presented
for our review" (People v McRay, 51 NY2d 594, 601 [1980]).     Here,
the Appellate Division erred as a matter of law in holding that
the undisputed facts and the reasonable inferences drawn
therefrom failed to satisfy the minimum showing necessary to
establish reasonable suspicion.    Therefore, I dissent and would
reverse the order of the Appellate Division and remit the cases
to that court for a review of the facts in accordance with this
Court's decision in People v McRay.
          In the early morning hours of December 9, 2010,
Sergeant Kenneth Monahan and Officers Edward Carey and Thomas
Donovan, members of the "cabaret unit," a unit whose primary duty
is the "midnight enforcement of bars and nightclubs," including
"drug sales, fraudulent accosting and loitering for
prostitution," were on uniformed patrol in the Times Square area.
          At around 1:30 a.m., Officer Carey encountered
defendant Brown -- whom he had previously arrested twice for


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                               - 2 -                   No. 36 & 37

fraudulent accosting -- outside of a club near Times Square and
directed him to leave the area.
           Three hours later, at around 4:30 a.m., while sitting
in an unmarked police van, the officers spotted defendants Brown
and Thomas running down the middle of Broadway in Times Square,
looking back over their shoulders as they ran.   Officer Carey
apprised his colleagues of Brown's identity.   Sergeant Monahan
recognized Thomas as someone who associated with people, other
than Brown, who preyed on victims in the Times Square area.     The
officers exited the van, called to defendants and both men
stopped.   Brown, who was out of breath, sat on the ground.
Neither Brown nor Thomas was placed in handcuffs.   Sergeant
Monahan contemporaneously located a robbery victim outside of the
club where Officer Carey had seen Brown three hours earlier.
After the victim identified both Brown and Thomas as the
perpetrators, they were placed under arrest.   The victim's Rolex
and $185 in cash was recovered from Thomas.
           Defendants thereafter moved to suppress the showup
identification.   After a suppression hearing where the court
heard testimony from two of the police officers and the victim,
Supreme Court denied the motion.   A divided Appellate Division
reversed, ordered suppression of the victim's out-of-court
identification, and remanded for a new trial, holding that "[t]he
fact that the officers observed defendant[s] . . . running does
not elevate the level of suspicion" (115 AD3d 38, 40 [1st Dept


                               - 2 -
                               - 3 -                    No. 36 & 37

2014]).
           "Where a police officer entertains a reasonable
suspicion that a particular person has committed, is committing
or is about to commit a felony or misdemeanor, the CPL authorizes
a forcible stop and detention of that person" (People v De Bour,
40 NY2d 210, 223 [1976], citing CPL 140.50 [1]).   Reasonable
suspicion is defined as "the quantum of knowledge to induce an
ordinarily prudent and cautious man under the circumstances to
believe criminal activity is at hand" (People v Cantor, 36 NY2d
106, 112-113 [1957]).   A stop based on reasonable suspicion will
be upheld if the officer can identify "specific and articulable
facts" that, together "with any logical deductions, reasonably
prompted th[e] intrusion" (id. at 113).
           Here, the officers observed defendants running down a
major thoroughfare in the early morning hours, looking back over
their shoulders.   They recognized the two men because they were
known to have engaged in, or had been associated with people
engaged in, crimes in that area.   The officers also knew that
Brown had a history of fraudulent accosting in the Times Square
area.   In fact, only three hours earlier Officer Carey had
observed Brown in front of the club and directed him to leave.
The officers also knew that Thomas fraternized with people, other
than Brown, involved in similar scams.    Clearly, under these
circumstances, the police officers possessed reasonable suspicion
to stop Brown and Thomas.   They would have been derelict in their


                               - 3 -
                               - 4 -                   No. 36 & 37

duty had they not done so.
           The present case is factually akin to the circumstances
in People v Evans (65 NY2d 629 [1985]), where this Court
determined that the initial stop of the defendant was based on
reasonable suspicion where the arresting officers observed the
defendant running from a subway station, carrying a white
shopping bag and looking over his shoulder several times, and
then trying to gain entrance to one apartment building after
another.   In concluding that the stop was reasonable, this Court
held: "Although each factor, standing alone, could be susceptible
to an innocent interpretation, a view of the entire circumstances
indicates that the officers entertained a reasonable suspicion
that the defendant had committed a crime . . . and was attempting
to flee" (id. at 630).
           Likewise, in this case, the combination of the
officers' particular knowledge of each defendants' criminal
history coupled with defendants' flight from an area where
defendants were known to fraternize, while looking over their
shoulders, was sufficient to provide the officers with reasonable
suspicion (see People v Sierra, 83 NY2d 928, 929 [1994] ["flight
. . . combined with other specific circumstances indicating that
the suspect may be engaged in criminal activity, may give rise to
reasonable suspicion"]).
           Morever, the motion court's finding of reasonable
suspicion under these circumstances is not inconsistent with our


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                               - 5 -                   No. 36 & 37

holding in People v Johnson (64 NY2d 617 [1984]).   There we held
that an officer's knowledge that a suspect had previously
burglarized houses in a neighborhood in which the suspect was
walking did not by itself amount to reasonable suspicion (see id.
at 619), but indicated that we might have reached a different
conclusion had the suspect been fleeing the scene (see id.
[noting that "there [was] no other testimony suggesting that his
behavior was furtive or his movements unusual"]).
          The officers plainly had reason to believe that
defendants had engaged in criminal activity.   As we cautioned in
People v Chestnut (51 NY2d 14 [1980]),
          "[c]ourts simply must not, in this difficult
          area of street encounters between private
          citizens and law enforcement officers,
          attempt to dissect each individual act by the
          policemen; rather, the events must be viewed
          and considered as a whole, remembering that
          reasonableness is the key principle when
          undertaking the task of balancing the
          competing interests presented"
(id. at 23).   Indeed, "[b]y disapproving of the stop of
defendant[s], . . . [the majority] is discouraging police work
that is not only constitutionally proper but also laudable.   Such
a precedent will serve to impede effective law enforcement and
interfere with the protection and safety of the public" (People v
Brown, 115 AD3d 38, 41 [Tom, J.P. and Saxe, J., dissenting]).     I
would reverse the order of the Appellate Division and remit the
cases to that court for a review of the facts in accordance with
this Court's decision in People v McRay.


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                                 - 6 -                       No. 36 & 37

*   *   *   *   *   *    *   *    *      *   *   *   *   *    *   *   *
For Each Case: Appeal dismissed upon the ground that the
reversal by the Appellate Division was not "on the law alone or
upon the law and such facts which, but for the determination of
law, would not have led to reversal" (CPL 450.90[2][a]), in a
memorandum. Chief Judge Lippman and Judges Read, Rivera,
Abdus-Salaam, Stein and Fahey concur. Judge Pigott dissents in
an opinion.

Decided March 26, 2015




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