People v. Holland

Order, Supreme Court, New York County (Bonnie G. Wittner, J.), entered November 26, 2008, which granted defendant’s motion to suppress physical evidence and statements, reversed, on the law, the motion denied, and the matter remanded for further proceedings consistent herewith.

On December 30, 2007, a team consisting of Police Officers Porras, Woodard and two others was on patrol in the vicinity of a public housing development. The area had been earmarked for patrol because of reports of drug dealing, robberies and gunshots. At approximately 1:40 a.m., the team approached a group of four to six individuals in front of 110 East 129th Street. Defendant, who was walking toward the group, changed his direction as the officers approached. Porras called out to defendant and asked him to stop. In response to Porras’s questions, defendant stated that he did not live in the housing development. At Porras’s request, defendant handed over photo identification. Porras testified that his investigation was complete at that point, since nothing about defendant’s photo identification aroused his suspicion. Porras did not, however, return the identification to defendant. Woodard, who did not hear the conversation between Porras and defendant, began asking defendant some of the same questions put to him by Porras. Defendant became irate and punched Porras. A struggle ensued as the officers arrested defendant for assault and disorderly conduct. Upon the arrest, quantities of crack cocaine and marijuana were recovered from defendant’s person. The motion court granted defendant’s motion to suppress physical evidence, as well as his statements, reasoning that “[e]ven if there was a basis for initially requesting information from defendant, which there was not, any such justification was exhausted after he answered Porr[a]s who was obligated to return the identification and allow him to leave.” The court further found that what it described as “continued detention” was unlawful, and defendant’s reaction to it was “proportionate to the circumstances.” We disagree.

Once defendant punched Officer Porras, any allegedly unlawful conduct in stopping and questioning defendant was attenuated by his calculated, aggressive and wholly distinct conduct (see People v Mercado, 229 AD2d 550 [1996]; People v Stone, 197 AD2d 356 [1993]). We distinguish People v Felton (78 NY2d 1063 [1991]), where there was no attenuation because the defendant’s action in striking a police officer was in the words of the suppression court, “immediate, spontaneous and proportionate to the officer’s attempt to lay hands on him when he refused to stop” {id. at 1064). Here, the police officers did not initiate any physical contact with defendant or attempt to do so before he punched Officer Porras. In this case, defendant’s actions were far out of proportion to Officer Woodard’s redundant questions. Hence, we disagree with the dissent’s view that defendant’s “minimal use of force in the attempt to get away from the officers was a direct consequence of his unlawful detention.” For purposes of applying Felton, it is of no moment whether defendant punched or pushed Officer Porras, because, as stated above, the police officers did not initiate or attempt to initiate physical contact with defendant. For example, in People v Sampson (68 AD3d 1455 [2009]), the court found that a suspect’s act in pushing a police officer did not dissipate the taint of an illegal stop because it was “a spontaneous reaction to [the officer’s] attempt to touch him, and a direct consequence of the illegal seizure” {id. at 1458 [emphasis added]). In light of the foregoing, we need not resolve the issue of the legality of the police officers’ stopping and questioning defendant (see Mercado, 229 AD2d at 551). Concur—Sweeny, Catterson and DeGrasse, JJ.