| People v Diallo |
| 2023 NY Slip Op 00744 |
| Decided on February 09, 2023 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided and Entered: February 09, 2023
Before: Kern, J.P., Singh, Shulman, Pitt-Burke, Higgitt, JJ.
Ind. No. 598/21 Appeal No. 17279 & M-4615 Case No. 2022-01361
v
Thierno Diallo, Defendant-Respondent.
Darcel D. Clark, District Attorney, Bronx (Paul A. Andersen of counsel), for appellant.
The Bronx Defenders, Bronx (Elli Marcus of counsel), for respondent.
Order, Supreme Court, Bronx County (Guy H. Mitchell, J.), entered on or about March 14, 2022, which granted defendant's suppression motion, unanimously affirmed.
There is no basis for disturbing the suppression court's factual determinations. The record supports the court's finding that an officer's testimony that he saw defendant walking along the street toward a marked police van, with what appeared to be a heavy object in his pocket, while clinching that pocket and appearing nervous, failed to establish a basis for anything more than a level one inquiry (see People v Howard , 50 NY2d 583, 589-590 [1980]; People v DeBour , 40 NY2d 210 [1976]); People v Cornelius , 113 AD2d 666, 669 [1st Dept 1986]). Based on the heavy object in defendant's pocket, the officers may have had an objective, credible reason to request information (see De Bour , 40 NY2d at 223), but the officers were not justified in forcibly seizing defendant by chasing and apprehending him. Defendant's flight, when accompanied by nothing more than the presence of an unidentifiable object in his pocket and his nervousness in the presence of a marked police van, did not create reasonable suspicion, because there was no founded suspicion of criminality before the flight (see People v Holmes , 81 NY2d 1056, 1057-1058 [1993]).
M- 4615 - People v Diallo
Motion to dismiss the appeal denied as academic.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: February 9, 2023