stairs, after him because he believe that the plaintiff, was the cause of the screams, but the fact is, an individual to whom a police officer addresses a question "has a constitutional right not to respond and he may remain silent, speak, walk, or run away," U.S.C.A. Const Amend. 4.5. "The privacy interest of our citizens is far too cherished, a right to be entrusted to the officer in the field." That privacy interest is protected by the mandates of the fourth amendment, to the United States Constitution and Section 12 of Article 1, of our state const. both of which, in identical language, states: "The rights of the people to be secure in their persons, houses, papers, and effects, against unreasonable, search and seizures, shall not be violated."
We have no difficulty in concluding, that the officer's request for information from plaintiff was justified under those criteria. There was, therefore, a basis for questioning plaintiff, but there was nothing that made permissible any greater level of intrusion. The officer had no information that a crime had occurred, or was about to take place, had not seen plaintiff, do anything criminal, and were confronted only by facts susceptible to that of innocent interpretation. The circumstances which the defendant Irrizarri, faced when first encountering the plaintiff, justified the inquiry made and would have justified the defendant in keeping plaintiff, under observation, but were not a predicate for anything more, nor can the failure to stop or cooperate, by identifying oneself, or answering question be the predicate for an arrest, this is because the failure to answer "cannot constitute a criminal act." But that does not mean that a police officer, in furtherance of their duties, may not continue observation, provided that they do so unobtrusively, and do not limit plaintiff's freedom of movement, by so doing. But, where as here, there is nothing to establish that a crime has been or is being committed, flight, like refusal to answer is an insufficient basis for seizure or for the limited detention that is involved in pursuit. " Brown v. Texas, 443 U.S. 47, 50 99 S. Ct. 2637, 2640, 61 L. Ed. 2d 357, Supra; Wong Sun v. United States 371 U.S. 471, 83 S. Ct. 407. 9 L. Ed. 2d 441; Therefore, summary judgment as to defendant Irrizarri, should be denied. Summary judgment as to defendant Lafferty, most be denied, due to the fact that he made prior false statement concerning his only involvement in this matter was transporting the plaintiff to the 20th precinct, by the documents submitted by the plaintiff, two facts that can't be denied is: (1) the plaintiff was arrested while sitting in the taxi cab, with two other witnesses, waiting for the police to arrive, (2) he denied the fact that he knew a Sam Chimon, or that they were together on the night in question, plus, the fact that Irrizarri, did not know or could state at the time he arrived what kind of weapon he seen the plaintiff possessed, before they search him, which was all witness by the passenger, and the taxi cab driver. The fact that he denied the plaintiff, emergency medical treatment, and knew that it was needed but, chose to look the other way, is a sufficient reason for him to be denied summary judgment.
SUMMARY JUDGMENT ISSUES AS TO SAM CHIMON
The plaintiff contends that, because the U.S. Marshal sent to deliver the summons and complaints was mislead in believing that a "Sam Chimon" did not work at the 20th Precinct, and due to fact that defendant Lafferty, falsely claimed to have not known a Sam Chimon, making matter even more difficult. The plaintiff, respectfully request that an extension of time for service of the summons and complaint to defendant Sam Chimon McCio, now that it is verified, that he works at the 20th Precinct to which the plaintiff advised the U.S. marshal that the defendant Sam Chimon, work there when he first submitted the moving papers in this matter, the plaintiff should be giving permission for re-service of the summon and complaint and respectfully hope that such permission be granted, due to the fact that the plaintiff has not failed to serve the summon and complaint, but that the defendant Lafferty, and the 20th Precinct, falsely advise the U.S. Marshal and all parties involved, that know Sam Chimon, work there, and plaintiff had no other means to contact the defendant Chimon. He should be granted permission to serve the defendant Sam Chimon McCio, with a summons and complaint.
The plaintiff requests for all the reasons set forth, above, respectfully recommend that plaintiffs cross-motion for summary judgment be granted, and the motion for summary judgment submitted by defendants Irrizarri, and Lafferty, be denied and that action be allowed to proceed, and the plaintiff request to re-submit a summons and complaint to defendant Sam Chimon McCio, be granted, due to the facts express by the plaintiff, and that a full review of all the plaintiffs documents submitted to the defendants attorney be render pertaining to issues of fact, because the plaintiff believes that the Hon. Katz have been mislead by their non-submitting of material fact, which was forwarded by the plaintiff to the defendant's attorney. The plaintiff on the 20th day of September, 1993, submitted a Motion for Default and a Motion for a Pretrial Conference, which was denied with leave to re-submit at a later date. Plaintiff request that he be granted a pretrial conference, so that further finding may be made on discovery, of material in the defendants possession, which is material fact, an seek the court permission to do so.
I Dan Landy, being duly sworn, deposes and says: that I have place copies of the affidavit on the 25th day of August, 1994, in the mailbox located at Sing-Sing Corr. Facility, 354 Hunter Street, Ossining, New York 10562-5442, and a copy of said sworn affidavit was sent to the Hon. Kimba M. Wood and Clerk of the Court United States District Courthouse, Foley Square N.Y. N.Y. and to Peter D. Winebrake, Assist. Corp. Counsel, New York Law Department, Office of the Corporation Counsel, 100 Church Street N.Y. N.Y.
I declare under penalty of perjury that the foregoing is true and correct. Signed this 25th day of August, 1994.
Sworn to before me this
25th day of August, 1994.
Notary Public State of New York
Qualified in Dutchess Co. No. 01FE5020101
Commission Expires November 8, 1995
Sing-Sing Corr. Facility
354 Hunter Street
Ossining, New York, 10562-5442.