        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

29
KA 13-02055
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CARNI, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAMONE SAVAGE, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered November 12, 2013. The judgment
convicted defendant, upon his plea of guilty, of criminal possession
of a weapon in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, the plea is vacated, the motion to
suppress physical evidence and supplemental motion to suppress
statements are granted, the indictment is dismissed, and the matter is
remitted to Supreme Court, Erie County, for proceedings pursuant to
CPL 470.45.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of criminal possession of a weapon in the second degree
(Penal Law § 265.03 [3]), defendant contends that Supreme Court erred
in refusing to suppress physical evidence, i.e., a handgun, and his
subsequent oral statements to the police because the police lacked an
objective, credible reason to justify their initial approach and
request for information. We agree.

     The testimony at the suppression hearing established that at
approximately 6:30 p.m. on January 18, 2013, a Buffalo police officer
and his partner were conducting a traffic stop in the parking lot of a
gas station when they observed defendant and two other men walking
down the sidewalk on the other side of the street in a “higher crime
area.” According to the officer, defendant was “staring” at him and
his partner or at their marked patrol vehicle. Upon concluding the
traffic stop, the officers crossed the street in their vehicle in
order to drive alongside the men, the officer asked, “what’s up,
guys?” from the rolled-down passenger window, and defendant then put
his head down and started walking away at a faster pace. The officer
thereafter observed defendant drop a gun holster to the ground and,
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                                                         KA 13-02055

after exiting the vehicle and picking up the holster, the officer saw
defendant discard a handgun into nearby bushes. The officer’s partner
positioned the patrol vehicle to cut off defendant’s path of travel,
and defendant was eventually apprehended.

     In evaluating police conduct, a court “must determine whether the
action taken was justified in its inception and at every subsequent
stage of the encounter” (People v Nicodemus, 247 AD2d 833, 835, lv
denied 92 NY2d 858; see People v De Bour, 40 NY2d 210, 222-223). At
the first level of a police-civilian encounter, i.e., a request for
information, a police officer may approach an individual “when there
is some objective credible reason for that interference not
necessarily indicative of criminality” (De Bour, 40 NY2d at 223), and
“[t]he request may ‘involve[] basic, nonthreatening questions
regarding, for instance, identity, address or destination’ ” (People v
Garcia, 20 NY3d 317, 322, quoting People v Hollman, 79 NY2d 181, 185).
Although the first level “sets a low bar for an initial encounter”
(People v Barksdale, 26 NY3d 139, 143), the Court of Appeals has
nevertheless observed that, “[i]n determining the legality of an
encounter under De Bour and Hollman, it has been crucial whether a
nexus to [defendant’s] conduct existed, that is, whether the police
were aware of or observed conduct which provided a particularized
reason to request information. The fact that an encounter occurred in
a high crime vicinity, without more, has not passed De Bour and
Hollman scrutiny” (People v McIntosh, 96 NY2d 521, 526-527).

     Here, we conclude that the officers engaged in a level one
approach and request for information when they concluded the traffic
stop after observing defendant and the other men walking down the
sidewalk, crossed the street in their marked patrol vehicle in order
to drive alongside the men, and asked them the basic, nonthreatening
question, “what’s up, guys?” (see People v Howard, 129 AD3d 1654,
1654; People v Johnston, 103 AD3d 1202, 1203, lv denied 21 NY3d 912;
People v Carr, 103 AD3d 1194, 1194). Contrary to the People’s
contention, it cannot be said, under such circumstances, that the
officers’ approach and inquiry was merely a “friendly greeting” that
did not constitute a request for information (cf. People v Thornton,
238 AD2d 33, 35).

     We agree with defendant that the officers’ conduct was not
justified from its inception. We conclude that merely staring at or
otherwise looking in the direction of police officers or a patrol
vehicle in a high crime area while continuing to proceed on one’s way,
absent any indicia of nervousness, evasive behavior, or other
movements in response to seeing the police, i.e., “attendant
circumstances . . . sufficient to arouse the officers’ interest” (De
Bour, 40 NY2d at 220), is insufficient to provide the police with the
requisite “objective, credible reason, not necessarily indicative of
criminality” to justify a level one encounter (Hollman, 79 NY2d at
184; see De Bour, 40 NY2d at 223; cf. e.g. Matter of Demitrus B., 89
AD3d 1421, 1421-1422; Matter of Steven McC., 304 AD2d 68, 72-73, lv
denied 100 NY2d 511; People v Randolph, 278 AD2d 52, 52, lv denied 96
NY2d 762). Here, beyond the fact that defendant had stared at the
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                                                         KA 13-02055

police in a “higher crime area” while continuing to walk down the
sidewalk, the officers testified to no further observations of
defendant or the other men that drew their attention (cf. People v
White, 117 AD3d 425, 425, lv denied 23 NY3d 1044; People v Sims, 106
AD3d 1473, 1473, appeal dismissed 22 NY3d 992; Johnston, 103 AD3d at
1203; Randolph, 278 AD2d at 52) and, to the extent that the court
found that defendant displayed any nervous or evasive behavior upon
initially seeing the officers, we conclude that such a finding is
unsupported by the record. We agree with defendant that the officers
lacked other attendant circumstances to arouse their interest inasmuch
as the encounter occurred at 6:30 in the evening rather than late at
night and there was automobile traffic in the area at that time (cf.
De Bour, 40 NY2d at 220; People v Riddick, 70 AD3d 1421, 1422, lv
denied 14 NY3d 844). The suppression hearing testimony further
established that the officers were not responding to a dispatch with a
description of a suspect in the area matching defendant’s appearance
(cf. Howard, 129 AD3d at 1654; People v Burnett, 126 AD3d 1491, 1491-
1492). We thus conclude that the officers lacked an objective,
credible reason for the level one approach and request for information
(see People v Laviscount, 116 AD3d 976, 978-979, lv denied 24 NY3d
962; People v Larmond, 106 AD3d 934, 934, lv denied 21 NY3d 1043;
Matter of Michael F., 84 AD3d 468, 468). Thus, the court erred in
refusing to suppress the handgun and defendant’s subsequent oral
statements to police.

     In light of our determination that the court should have granted
defendant’s motion seeking to suppress physical evidence and his
supplemental motion seeking to suppress his oral statements to police,
defendant’s guilty plea must be vacated (see Riddick, 70 AD3d at
1424). Further, inasmuch as our determination results in the
suppression of all evidence in support of the crime charged, the
indictment must be dismissed (see People v Hightower, ___ AD3d ___,
___ [Feb. 11, 2016]). We therefore remit the matter to Supreme Court
for proceedings pursuant to CPL 470.45.




Entered:   March 25, 2016                       Frances E. Cafarell
                                                Clerk of the Court
