Defendant appeals from the judgment of the Supreme Court, New York County (Thomas Farber, J. at dismissal motion; Michael R. Sonberg, J. at suppression hearing; Cassandra M. Mullen, J. at jury trial and sentencing), rendered June 22, 2011, convicting him of grand larceny in the third and fourth degrees and fraudulent accosting and imposing sentence.
Robert S. Dean, Center for Appellate Litigation, New York (Bruce D. Austern of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (David M. Cohn of counsel), for respondent.
Peter Tom, J.P., Angela M. Mazzarelli, David B. Saxe, Karla Moskowitz, Sallie Manzanet-Daniels, JJ.
Police officers observed defendant and his companion, Patrick Thomas (see People v Thomas, __A.D.3d__, appeal no. 10828 [decided simultaneously herewith]), running across Broadway, in the Times Square area, at approximately 4:40 a.m., "looking over their shoulder[s]." No crime had been reported, the officers did not see anyone chasing the two men, and no apparent contraband was visible. 
The motion court denied defendant's motion to suppress the showup identification, finding that the police had reasonable suspicion to stop defendant when they observed defendant and Thomas "moving at a significant pace... looking over their shoulders... as if to see if they were being followed." The court noted that "[b]oth Officer Carey and Sergeant Monahan knew from prior contacts that Mr. Brown engaged in fraudulent accosting in that area, " and reasoned that "someone knowing of Mr. Brown and his prior criminal activities [would] believe that he had engaged in some sort of scam, and was fleeing a scene." We now reverse.
A level three forcible stop is constitutional only if the police have a "reasonable suspicion that a particular person was involved in a felony or misdemeanor" (People v Hollman, 79 N.Y.2d 181, 185 ). In determining whether the police officers had the requisite reasonable suspicion, only the information known to the officers prior to the forcible stop is relevant (see People v Cantor, 36 N.Y.2d 106, 111 ).
The officers' knowledge of defendant's prior criminality in the same neighborhood was not sufficient to give rise to reasonable suspicion justifying a level three intrusion.
"[A] stop based on no more than that a suspect has previously been arrested... is premature and unlawful and cannot be justified by subsequently acquired information resulting from the stop" (People v Johnson, 64 N.Y.2d 617, 619 ). In Johnson, the defendant, a known burglar, was stopped by officers who observed him walking around and looking at houses in an area where previous burglaries had occurred. The Court of Appeals held the stop unlawful, reversed, and granted the motion to suppress.
Likewise, in People v McCullough (31 A.D.3d 812 [3rd Dept 2006], lv denied 7 N.Y.3d 850 ), the defendant, who was known to the officer as a result of previous arrests for trespass and possession of a controlled substance, was observed coming from the backyard of a building known for narcotics dealing. Upon seeing the police, the defendant stopped, turned, and ran. The Third Department held that the police lacked reasonable suspicion to pursue the defendant, and granted the motion to suppress.
This Court, in People v Boulware (130 A.D.2d 370 [1st Dept 1987], appeal dismissed 70 N.Y.2d 994 ), stated that an officer's belief that the defendant has had previous arrests is an insufficient basis on which to find an objective suspicion of criminal activity, reasoning that "[t]o hold otherwise would be to exclude all persons with arrest records from the protection of the Fourth Amendment and render them subject to arbitrary stops and inquiries" (id. at 373). An officer's surmise as to a person's propensity to commit crime, in the absence of objective indicia that a crime has taken or will be taking place, is an insufficient constitutional predicate (id.).
As Johnson and Boulware make clear, the officers' knowledge of defendant's criminal past is not tantamount to an "indication of criminal activity." 
The fact that the officers observed defendant and Thomas running does not elevate the level of suspicion. Flight, accompanied by equivocal circumstances, does not supply the requisite reasonable suspicion (see People v Holmes, 81 N.Y.2d 1056 ). The police did not observe conduct indicative of criminality, nor did they even possess information that a crime had occurred in the area. The cases relied on by the People are readily distinguishable insofar as they involve flight coupled with other factors (see e.g. People v Poh Wong, 204 A.D.2d 111 [1st Dept 1994] ...