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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