People v. Richardson (Buff. City Court 2015) .

STATE OF NEW YORK
BUFFALO CITY COURT COUNTY OF ERIE
THE PEOPLE OF THE STATE OF NEW YORK,

Docket No.
-vs- 14M 6557
RAYMONRICHARDSON,
Defendant.
FRANK A. SEDITA, III,

Erie Count District Attorney,
(Frank A. Strano, Esq., of counsel),
for the People of the State of New York.
REBECCA L. TOWN, ESQ.,

Legal Aid Bureau of Buffalo, Inc.,
· for the Defendant.
DECISION AND ORDER
MARTOCHE, J.
Introduction
Defendant Raymon Richardson is charged with two counts of Criminal Trespass in
·the third degree (Penal Law ("PL") §§ 140.10(a) & 140.10(e)) and one countofEndangering
the Welfare of a Child (PL § 260.1 0(2)). Defendant moved to dismiss the Criminal Trespass
charges for failure to contain non-hearsay allegations of fact supporting each and every
element of the charges. Defendant, claiming to be aggrieved by an unlawful search and
seizure, also moved to suppress the tangible evidence, observations aild statements obtained.
On October 8, 2014, the Court held oral argument with respect to the Defendant's ·
motion to dismiss. At oral argument, the People dismissed one count of Criminal Trespass
(PL § l40.10(a)), but otherwise opposed the relief sought by Defendant. At the conclusion ·
of the argument, the Court reserved decision regarding the sufficiency of the remaining
trespass charge and scheduled a suppression hearing. The suppression hearing occurred on
October 16, 2014.
In rendering this Decision and Order, the Court considered all the papers submitted
by the People and the Defendant, the testimony elicited at the probable cause hearing, and
the arguments of counsel.
Facial Sufficiency of Criminal Trespass (PL § 140.10(e))
Defendant's motion to dismiss the remaining charge of Criminal Trespass ·contrary
to PL § 140.1 0( e) is denied. The information and supporting deposition, when read together,
contain allegations of a non-hearsay nature in support of each and every element of the
charge.
Motion to Suppress
The People called one witness, Police Officer William Macy, at the suppression
hearing. The Court finds that Officer Macy was candid and forthright in his testimony, and
· credits the officer's testimony.
(A) Findings of Fact
Officer Macy has been a member ofthe Buffalo Police Department for six years. See
Hearing Transcript dated October 16, 2014 ("Tr.") at p. 4. On May 3, 2014, Officer Macy
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-- -- --------'----
was assigned to the Buffalo Police Department "Housing Unit." Tr. at p. 6. Housing Unit
officers are assigned to patrol the 27 Buffalo Municipal Housing Authority ("BMHA")
properties located in Buffalo. Tr. at pp. 6-7.
At. approximately 4:30p.m. on May 3, 2014, Officer Macy was. conducting a
vertical foot patrol at 305 Perry Street ("305 Perry"), which is a BMHA high-rise
building. Tr. at p. 8. Officer Macy was at 305 Perry that day to respond to "complaints in
general," rather than to any one specific complaint. Tr. at p. 17. OfficerMacy testified
that out of all the BMHA locations, 305 Perry has the highest number of civilian ·
complaints regarding illegal activities. Tr. at p. 6. He described it as a location with
"prevalent drug activity" and he noted that residents also complained about people who
do not live there, "urinating in the hallways, tagging it with graffiti, [and] harassing the
residents." Tr. at p. 7. In the four years since the Housing Unit was started, Officer Macy ·
has made "hundreds of arrests" there. Tr. at p. 14.
Unless a door was propped open or broken, an individual had to be let in to gain
ac9ess to this high-rise building. Tr. 15-16. When Officer Macy entered the lobby at 305
Perry on this day, the door was not propped open or broken. Tr. at 16-17. He noted that
there was a "no trespassing" sign by the lobby door, though he did not know whether the
Defendant entered through that door or through one of the other two entrances to the
high-rise. Tr. at 9-10,23. Officer Macy also testified that hundreds of people live in this
high-rise, and that he would be able to recognize one-third of them. Tr. at p. 11 & 14.
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At about 4:30p.m., Officer Macy noticed the Defendant exiting an elevator. Tr. at
p. 8. He initiated a conversation and asked the Defendant whether he lived there. Tr. at
p. 9. After the Defendant responded that he did not, Officer Macy asked him why he was
there. Tr. at p. 9. The Defendant then decided to "stop answering []questions" and told
the officer "this was harassment." Tr. at p. 9. Officer Macy testified that after the
Defendant responded he-did not live there, he was no longer free to leave. Tr. at p. 21.
He was detained and then moved from 305 Perry to the Buffalo Police Department's
Housing Unit headquarters at 312 Perry. Tr. at p. 22.
According to Officer Macy, after the Defendant had been detained for nearly an
hour, and while he was at the station house, he told officers that he was not visiting
anyone in particular at the high-rise, but that he was just "out for a walk." Tr. at p. 25-26.
At some point while he was detained, the Defendant also told officers that his children
were home alone. Tr. at p. 12. The officers accompanied the Defendantto his residence,
saw that his two minor children where home alone and then charged the Defendant with
one count of Endangering the Welfare of a Child and with two counts of Trespass.
(B) Conclusions of Law
Where a defendant challenges the admissibility of physical evidence, he bears the
ultimate burden of proof in establishing that the proffered evidence was seized as the
product of unlawful police action. Butthe People have the initial burden of showing the
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legality of police conduct in the first instance. See People v. DiStefano, 38 N.Y.2d 640
(1976); People v. Berrios, 28 N.Y.2d 361 (1971).
As the Court of Appeals enunciated in People v. De Bour, 40 N.Y.2d 210 (1976),
an officer may request information from a civilian about his identity and reason for being
at a particular location, where the request is supported by an objective, credible reason,
not necessarily indicative of criminality. The De Bour court emphasized that this type of
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, is
permissible. "The fact that an encounter occurred in a high crime vicinity, without more,
has not passed De Bour ap.d Hollman scrutiny." People v. Mcintosh, 96 N.Y.2.d 521, 527
(2001), see also Riddick, 70 A.D.3d at 1421. Based on Officer Macy's testimony
regarding the history of drug activity at the building, coupled with the numerous and
ongoing complaints made by residents, the Court finds that Officer Macy's initial inquiry
was proper. De Bour, 40 N.Y.2d at 220; see also People v. Riddick, 70 A.D.3d 1421 (4
Dept 2010); People v. Brown, 67 A.D.3d 1439 (4 Dept 2009).
But the follow-up questioning by Officer Macy was not constitutionally
permissible under De Bour. A police officer may engage in a "common law inquiry" and
make inquiries of a more intrusive and accusatory questioning -- what the De Bour court
calls the ·~second level" of a police encounter-- but it must be supported by "founded
suspicion that criminality is afoot." People v. Hollman, 79 N.Y.2d 181, 190 (1982). A
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common law inquiry does not entitle the police to detain a person against his will. De
Bour, 40 N.Y.2d at 223. The police may only escalate the encounter to the third level and
impede a person's freedom of movement and detain or frisk if an officer has a ·
"reasonable suspicion that a particular person has committed, is committing or is about to
commit" a crime. !d. at 223; see also People v. Martinez, 80 N.Y.2d 444,447 (1982).
Once the officer's questions became extended and his focus was on the possible
criminality of the Defendant, this was no longer a simple request for information; it
became a common-law inquiry.that hadtobe supported by "a founded suspicion that
criminality [was] afoot." Hollman, 79 N.Y.2d at 190; see also De Bour, 40 N.Y.2d at
220. Simply put, police encounters with civilii:m subje~ts must be proportionate to the
concerns raised by the subject's observed conduct.
Officer Macy took Defendant into custody, transported him to the Buffalo Police
Department's Housing Unit headquarters, and held him in custody for nearly an hour.
Effectively, Officer Macy escalated the encounter directly to a level-three encounter
under De Bour. See also Hollman, 79 N.Y.2d 181; People v. Hightower, 261 A.D.2d 871
(4 Dept 1999). Based upon the information known to Officer Macy at the time he
detained the Defendant, the Court concludes he did not possess "a founded suspicion that
criminal activity was afoot." Officer Macy had no legal authorization to detain the
Defendant.
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STATE OF NEW YORK

BUFFALO CITY COURT COUNTY OF ERIE

THE PEOPLE OF THE STATE OF NEW YORK,

FRANK A. SEDITA, III,

REBECCA L. TOWN, ESQ.,

DECISION AND ORDER

Defendant Raymon Richardson is charged with two counts of Criminal Trespass in

element of the charges. Defendant, claiming to be aggrieved by an unlawful search and

October 16, 2014.

the arguments of counsel.

Facial Sufficiency of Criminal Trespass (PL § 140.10(e))

Defendant's motion to dismiss the remaining charge of Criminal Trespass ·contrary

· credits the officer's testimony.

(A) Findings of Fact

properties located in Buffalo. Tr. at pp. 6-7.

At. approximately 4:30p.m. on May 3, 2014, Officer Macy was. conducting a

complaints regarding illegal activities. Tr. at p. 6. He described it as a location with

has made "hundreds of arrests" there. Tr. at p. 14.

Housing Unit headquarters at 312 Perry. Tr. at p. 22.

(B) Conclusions of Law

Where a defendant challenges the admissibility of physical evidence, he bears the

(1976); People v. Berrios, 28 N.Y.2d 361 (1971).

As the Court of Appeals enunciated in People v. De Bour, 40 N.Y.2d 210 (1976),

at a particular location, where the request is supported by an objective, credible reason,

nonthreatening encounter, in which an individual is approached for an articulable reason

Dept 2010); People v. Brown, 67 A.D.3d 1439 (4 Dept 2009).

But the follow-up questioning by Officer Macy was not constitutionally

impede a person's freedom of movement and detain or frisk if an officer has a ·

"reasonable suspicion that a particular person has committed, is committing or is about to

became a common-law inquiry.that hadtobe supported by "a founded suspicion that

concerns raised by the subject's observed conduct.

Effectively, Officer Macy escalated the encounter directly to a level-three encounter

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