Split Brooklyn court orders suppression of gun evidence in juvenile case

November 20, 2014 By Charisma L. Troiano, Esq. Brooklyn Daily Eagle

Brooklyn appellate Justice Betsy Barros departed from the majority in a decision involving the stop-and-frisk pursuit and gun possession charge of a youth offender. Eagle photo by Rob Abruzzese

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A New York appellate court issued a split ruling earlier this month, holding that NYPD officers lawfully pursued and arrested a juvenile suspect and a lower court judge properly applied probation for the possession of a firearm.

The Appellate Division, Second Department, was not unanimous in its decision, however, with one justice finding fault with the majority’s adherence to the police officers’ testimony.

Youth defendant Ya-Sin S., younger than 16, was placed on 24 months of probation after a lower Family Court judge found him guilty of possession of a weapon — an offense that, if committed by an adult, would constitute criminal possession in the second degree.

According to the court record, three officers were near — though not in the immediate vicinity — the location in Bushwick when they heard gunshots ring out.

The officers testified that shortly after the gunshots, Ya-Sin was seen leaving the area, walking with a friend. When Ya-Sin saw the officers, he began running. Noticing a bulge in the defendant’s waistband, the police stated, they pursued and watched Ya-Sin reach in his pants and toss a gun onto the street.

Justices Mark Dillon, Priscilla Hall and Sandra Sgroi found credibility in the officers’ testimony and held that there was enough reasonable suspicion to validate the pursuit, arrest and ultimate recovery of the gun.

“[P]olice have reasonable suspicion to pursue an individual observed with a bulge at the waistband while in geographic and temporal proximity of gunshots, who then flees from the police,” the majority wrote in its Nov. 12 opinion in Ya-Sin’s appeal.

For Justice Besty Barros, however, the police testimony contained significant inconsistencies, creating a question of veracity.

While there is no dispute that shots were heard, one officer testified that the sound was not enough to warrant a call over the police radio. Further, the police officer who completed the “Stop, Question and Frisk Report Worksheet,” did not indicate that there was a bulge or suspicious object that led to the pursuit and stop of Ya-Sin.

“Notably, in the stop and frisk report under “circumstances that led to stop,” the box for “suspicious bulge/object (describe)” is not checked,” Barros observed.

Also called into doubt was the timing of the gunshot sound and the location of the officers prior to the sound. One officer testified that she and her partner “heard some shots” and “started driving around looking for … where they were coming from.” Two to three minutes later, the officer’s testimony continued, Ya-Sin was seen walking. The teenager did not run until he saw the officers.

Another officer testified that gunshots were heard between 7:30 p.m. and 8 p.m. with Ya-Sin being seen walking at 8:50 p.m. — a sharp contrast from prior testimony that the defendant was witnessed two to three minutes after the gunshots.

“Here, accepting the testimonies of all three police officers, the gunshots were heard anywhere from 2 to 3 minutes, or 1 hour and 20 minutes before the officers observed the appellant and his companion just walking,” Barros wrote in her dissenting opinion. “The gunshots were heard coming from an unspecified location at a distance of at least four or five blocks away.”

Barros concluded that there was no reasonable suspicion of wrongdoing enough to justify the police pursuit of Ya-Sin. The officers’ testimony, Barros alluded, could not be trusted as credible fact.

The majority dismissed Barros’ critique, standing behind the court’s decision.

“Although our dissenting colleague places great weight upon the fact that the testimony of the three police officers was not identical with respect to how long it was after they heard the gunshots that they first observed the appellant, the consistency of the record supports the Family Court’s determination to credit the police officers’ testimonies,” the majority wrote in its unsigned opinion.

Carbon copy testimony was not necessary, Barros replied back, but not even basic similarities threaded through the officers’ differing accounts.

“The majority’s assertion that the ‘consistency of the record supports the Family Court’s determination’ is belied by the record, which demonstrates, as set forth in greater detail below, significant inconsistencies among the officers, as well as inconsistencies between the testimonies of the officers and the stop-and-frisk report that was prepared and reviewed by them,” Barros said.

Ya-Sin’s only offense, the dissenting judge added, was walking through an urban neighborhood, grabbing his waistband and running away when he noticed police officers.

“Such observations,” Barros explained, “do not constitute specific circumstances indicative of criminal activity so as to establish the reasonable suspicion necessary to lawfully pursue an individual.”

The three majority justices, however, affirmed Ya-Sin’s probation punishment.

“[T]he majority properly recognized that the juvenile’s stop was based on reasonable suspicion and that there was no basis to second guess the Family Court’s determination that the police officers’ sworn testimony was credible,” a spokesperson for the city said in a statement.

Ya-Sin’s attorney, Carol Khan, expressed an interest in a further appeal based on Barros’ dissenting opinion. Khan told the New York Law Journal that she was “very concerned about proximity, vicinity and issues of … [the] officers in a moving van.”