Kathleen M. Rice, District Attorney, Mineola, N.Y. (Yael V. Levy and Ilisa T. Fleischer of counsel), for appellant.
White, Cirrito & Nally, LLP, Hempstead, N.Y. (Michael L. Cirrito and Christopher M. Lynch of counsel), for respondent.
PETER B. SKELOS, J.P., CHERYL E. CHAMBERS, L. PRISCILLA HALL, ROBERT J. MILLER, JJ.
DECISION & ORDER
Appeal by the People from an order of the Supreme Court, Nassau County (Peck, J.), dated May 2, 2013, which, after a hearing, granted that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the order is affirmed.
At approximately 4:40 p.m., in an area where "a couple of shootings" had occurred "a couple months prior, " the defendant was observed by two plainclothes detectives who were in an unmarked vehicle. The defendant, wearing a black hooded sweatshirt and black sweatpants, was walking on the sidewalk in the same direction as the vehicle was traveling. As the vehicle, which was moving at no more than 10 miles per hour, came up next to the defendant, he turned and made eye contact with one of the detectives. The defendant looked away and "grabbed his waistband area" in such a way that it "[s]eemed as if he had a bulge or something heavy that he was holding on the outside of his garments." The detectives drove past the defendant, made a U-turn, and came up behind the defendant, who had turned his back to them. As the detectives got out of the vehicle and approached the defendant, he ran. The detectives pursued him, and he discarded a gun during the pursuit.
A suspect's "flight alone... even [his or her flight] in conjunction with equivocal circumstances that might justify a police request for information, is insufficient to justify pursuit" (People v Holmes, 81 N.Y.2d 1056, 1058; see People v Carmichael, 92 A.D.3d 687, 688). However, flight, "combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit" (People v Holmes, 81 N.Y.2d at 1058).
Under the circumstances of this case, the defendant's "grabb[ing]" of his "waistband area" in such a way that it "[s]eemed" to the detectives that the defendant "had a bulge or something heavy that he was holding on the outside of his garments, " did not constitute specific circumstances indicative of criminal activity so as to establish the reasonable suspicion that was necessary to lawfully pursue the defendant, even when coupled with the defendant's having made eye contact with the detectives and his flight from the detectives (see People v Cady, 103 A.D.3d 1155; People v Carmichael, 92 A.D.3d 687; People v Cadle, 71 A.D.3d 689; People v Harris, 149 A.D.2d 730; cf. People v Byrd, 304 A.D.2d 490). As the detectives' pursuit of the defendant was unlawful, and the defendant's disposal of the weapon during the pursuit was precipitated by the illegality ...