         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
202
KA 10-01100
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                               MEMORANDUM AND ORDER

EMMANUEL RODRIGUEZ, DEFENDANT-RESPONDENT.


FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR APPELLANT.

KEVIN J. BAUER, ALBANY, FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Erie County Court (Michael F.
Pietruszka, J.), dated March 23, 2010. The order granted the
suppression motion of defendant.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law, that part of the motion to suppress
evidence is denied, and the matter is remitted to Erie County Court
for further proceedings on the indictment.

     Memorandum: The People appeal from an order granting that part
of defendant’s omnibus motion to suppress evidence, i.e., a weapon and
an oral statement made by defendant to a police officer. We reverse.
The testimony at the suppression hearing established that an off-duty
police officer was engaged in part-time employment, providing security
at a bar in the City of Buffalo, when he was notified about a fight
inside the bar. The off-duty officer brought one of the individuals
involved in the fight outside and observed him walk to a vehicle. The
off-duty officer heard the individual speak to another individual in
Spanish about “a pistol” and “a gun.” According to the testimony of
the off-duty officer, upon hearing the conversation about a pistol and
a gun, he used his cellular telephone to call an on-duty police
officer, and he told the officer about the conversation. The officer
who received the call, however, testified that the off-duty officer
simply told him about a disturbance at the bar and did not mention a
pistol or a gun.

     When two police officers responded to the call, the off-duty
officer motioned to a nearby vehicle. Two individuals were inside the
vehicle, and defendant was attempting to enter the rear passenger
seat. One of the officers testified that he approached defendant to
“see what was going on.” He asked defendant “just how’s it going, you
know, what are you up to, you got some ID, can I talk to you for a
minute.” Defendant responded by stating, “I have something in my
                                 -2-                           202
                                                         KA 10-01100

pocket, but it’s not mine.” The officer observed what he described as
an “oddly shaped” sock sticking out of defendant’s right rear pocket.
The officer testified that “it looked more like it might have been
some type of firearm.” The officer pulled on the sock and it felt
“like a handgun.”

     County Court concluded that the People failed to meet their
burden of establishing that the officer’s reason for approaching
defendant extended beyond mere curiosity and noted that defendant was
not engaged in any criminal activity at the time of the approach. The
court thus concluded that the officer detained defendant “without any
information concerning the situation he was there to investigate” and
therefore suppressed the evidence seized from defendant and a
statement thereafter made by him.

     The parties agree that this case involves the four-tier common-
law analysis of police-civilian encounters set forth by the Court of
Appeals in People v De Bour (40 NY2d 210). The parties further agree
that the encounter between the police and defendant here was a level
one encounter, in which the police may lawfully approach an individual
and inquire about basic, non-threatening matters such as name, address
and destination, as long as the police have “some articulable reason”
for the questioning (id. at 213; see People v Hollman, 79 NY2d 181,
185). Indeed, such “questions need be supported only by an objective
credible reason not necessarily indicative of criminality” (Hollman,
79 NY2d at 185). We conclude that the People met their burden of
establishing that the officer had an objective credible reason, i.e.,
information from an off-duty police officer concerning a disturbance,
justifying the officer’s request for basic non-threatening information
from defendant (see People v Reyes, 83 NY2d 945, 946, cert denied 513
US 991; People v Rush, 31 AD3d 1115, lv denied 7 NY3d 870). Thus,
under the circumstances presented here, we conclude that the court
erred in granting that part of defendant’s omnibus motion seeking
suppression.




Entered:   March 25, 2011                       Patricia L. Morgan
                                                Clerk of the Court
