State of New York                                          MEMORANDUM
Court of Appeals                                      This memorandum is uncorrected and subject to
                                                    revision before publication in the New York Reports.




 No. 27
 The People &c.,
         Respondent,
      v.
 Nicholas Hill,
         Appellant.




 Susan Epstein, for appellant.
 John T. Hughes, for respondent.
 The Bronx Defenders, et al., amici curiae.




 MEMORANDUM:

       The order of the Appellate Division should be reversed, the motion to suppress

 granted and the indictment dismissed.



                                              -1-
                                             -2-                                       No. 27

       Defendant Nicholas Hill was approached by New York Police Department officers

after they observed him exiting and reentering a building in a New York City Housing

Authority development several times. Upon the officers’ request, defendant explained that

he was visiting a friend who lived in the building. The officers asked defendant for his

identification, which he provided. An officer then took defendant’s identification to the

eleventh floor of the building to verify whether the occupant of the apartment defendant

identified knew him.1 Another officer instructed defendant to “stand right there” under the

watch of two officers. When the first officer returned, having determined that the occupant

of the apartment did not know defendant, defendant was arrested for trespassing. At the

precinct, officers conducted a search of defendant’s person incident to his arrest and

recovered 42 bags of crack cocaine from his groin area.

       Defendant moved to suppress the evidence on the ground that the police encounter

constituted a level-three seizure under People v De Bour (40 NY2d 210 [1976]) and was

not justified by a requisite reasonable suspicion. The People contended that the encounter

was a level-one request for information under De Bour, for which the officers had a

requisite objective credible reason.      After a hearing, the suppression court denied

defendant’s motion, concluding that the encounter was an appropriately justified level-one

inquiry because defendant was free to leave until he was arrested, and that there was




1
 Defendant contends he told the officers a different apartment number than the one they
visited, and it is undisputed that the occupant across the hall from the one the police visited
was the friend to whom defendant referred. Our decision does not depend on whether
defendant provided the correct apartment number to the police.
                                             -2-
                                             -3-                                      No. 27

probable cause to support his arrest for trespassing once the arresting officers learned that

he was unknown to the apartment’s occupant. Defendant pled guilty to possession of a

controlled substance in the third degree. The Appellate Division, holding that the trial

court properly denied defendant’s motion to suppress, affirmed the judgment.

         At the suppression hearing, the People justified the officers’ interaction with

defendant purely on the ground that it was a level-one inquiry supported by an objective

credible reason. At its inception, this was “a general, nonthreatening encounter in which

an individual is approached for an articulable reason and asked briefly about his or her

identity, destination, or reason for being in the area” (People v Hollman, 79 NY2d 181,

191 [1992]). That request implicated only level one of De Bour (see id.) and required only

an objective credible reason to make basic inquiries of defendant (De Bour, 40 NY2d at

223). On this record, the initial inquiry was justified.

         However, the record demonstrates that the encounter thereafter rose beyond a level-

one request for information, which the People failed to justify as lawful. Consequently,

the People have failed to preserve any argument that the encounter in this case was justified

under levels two or three of De Bour.

*    *       *    *     *    *     *    *     *     *      *   *    *     *     *    *     *

Order reversed, defendant’s motion to suppress granted and indictment dismissed, in a
memorandum. Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Garcia and Wilson
concur. Judge Feinman took no part.


Decided May 2, 2019

                                             -3-
