Danielle S. Fenn, for appellant.
Joshua M. Levine, for respondent.
In People v Havelka (45 N.Y.2d 636 ), we held that the People, if afforded a full and fair opportunity to present evidence of the dispositive issues at a suppression hearing, are not entitled to a remand after appeal for a reopened hearing. We hold that the principles underlying Havelka have equivalent force in the pretrial setting, and preclude a trial judge from reopening a suppression hearing to give the People an opportunity to shore up their evidentiary or legal position absent a showing that they were deprived of a full and fair opportunity to be heard.
On November 1, 2006, Police Officer Jamal Gungor and Sergeant Chester Indiviglio of the New York City Police Department's Transit Division were assigned to conduct an anti-crime patrol at the Halsey Street subway station on the L line in Bushwick, Brooklyn. Two days earlier, a gunpoint robbery had taken place on the platform there. The perpetrators were described simply as two black males between 18 and 22 years of age, one light-skinned and approximately 5'6" to 5'7" tall; the other dark-skinned and approximately six feet to 6'1" tall. The officers, in plainclothes, set out from their home precinct in the Broadway Junction subway station at around 3:30 p.m. and headed to the L train platform. Halsey Street is three stops from Broadway Junction.
While the officers waited on the platform, which was crowded with young people on their way home from school, Sergeant Indiviglio pointed out to Officer Gungor defendant Kevin W., then 17 years old, and another young man, who turned out to be defendant's four-years-older brother, Richard. When the train arrived, the officers boarded with defendant and Richard. Officer Gungor sat on the same bench as the two young men, about five or six feet away. Sergeant Indiviglio sat on the bench opposite, roughly across from Officer Gungor.
The brothers got off the train at the Halsey Street station, followed by the two officers. The officers immediately hailed them, identified themselves as police officers and showed them their shields; they told defendant and Richard that they wanted to ask some questions. Sergeant Indiviglio approached Richard; Officer Gungor, defendant. Defendant refused to show identification. He insisted he had done nothing wrong, told Officer Gungor not to touch him and tried to walk away. Officer Gungor asked defendant to lean against the wall and produce identification and had his hands out towards defendant, which, according to his later testimony, was intended to keep some distance between them and to appeal for calm. Defendant pushed Officer Gungor's hands aside.
At some point, defendant appeared to reach for his waistband. This movement caused Officer Gungor to fear for his safety. He grabbed defendant's left arm and attempted to push him against the wall and apply handcuffs. Defendant resisted. Seeing this scuffle develop, Sergeant Indiviglio forced Richard up against the wall, told him to stay put and turned to help Officer Gungor. But Richard immediately took off, tossing an object onto the platform as he fled the subway station and ran out into the street.
Still trying to restrain defendant, Officer Gungor grabbed at his loose-fitting hooded sweatshirt. Defendant managed to chuck the sweatshirt and his backpack or book bag, and ran off in the same direction as his brother. The officers pursued, leaving the bag and sweatshirt on the platform. Officer Gungor stopped briefly, though, to pick up the object discarded by Richard, which turned out to be an inoperable pistol. He also radioed for assistance.
While the officers were engaged in their ultimately unsuccessful pursuit of the two young men, Transit Division Police Officer Keecha Patrick-Santos arrived at the Halsey Street station. The platform was empty except for defendant's sweatshirt and bag. Officer Patrick-Santos retrieved the bag and opened it. Inside were several items, including a legal pad with notes, a photograph of defendant and a loaded pistol, later determined to be operable.
The bag's contents were later examined by Detective David Sanchez, the Transit Division officer assigned to investigate the Halsey Street station robbery. Using the legal pad notes and the photograph, Detective Sanchez identified defendant and arrested him at his home the following day, November 2, 2006 . Defendant was charged with second-degree criminal possession of a weapon (Penal Law § 265.03 ) and resisting arrest (Penal Law § 205.30). Detective Sanchez created a photo array which included defendant's image and showed it to Officer Gungor and Sergeant Indiviglio. They both identified defendant in the photo array. They also both identified him in a subsequent line up. 
Defendant moved to suppress the contents of the bag and the identifications, and on May 15, 2007, a Mapp/Wade hearing was held before a judicial hearing officer (JHO). The People called Officer Gungor to describe the encounter with defendant and Richard; they did not call Sergeant Indiviglio. Officer Gungor testified that while he and his partner were waiting on the platform, Sergeant Indiviglio observed defendant and Richard "acting a little suspicious, " and pointed them out to Officer Gungor, who had not noticed them before. Officer Gungor described their behavior as "canvassing the area"; he did not claim that defendant and Richard matched the descriptions of the Halsey Street station robbery suspects.
According to Officer Gungor, Sergeant Indiviglio "made eye contact" with him on the train in a way to suggest that the sergeant thought defendant and Richard were armed, and that Officer Gungor should not move until the two young men got off the train. Further, Officer Gungor stated that, aside from occasional glances, he tried not to look at defendant and ...