A Queens judge should have suppressed a firearm that a man, convicted in 2008 of criminal possession of a weapon, tossed from his waistband during a foot pursuit by police, an appeals court ruled in vacating the man’s indictment.
The decision by an Appellate Division, Second Department, panel in People v. Clermont, 726/07, on Wednesday was the second time the appeals court has reviewed a decision by Queens Supreme Court Justice Michael Aloise in the case.
In 2006, New York City Police Detective John Lunt and Officer Michael Duffy were on plainclothes patrol in an area known for gang activity in Jamaica, Queens when Lunt saw Jocelyn Clermont walking down the street and making “constant adjustments” to the right side of his waistband, according to the panel’s decision.
When Lunt approached Clermont and identified himself as a police officer, Clermont ran off. During the ensuing foot chase, Clermont removed a fully loaded semiautomatic handgun from his waistband and threw it on the ground before he was apprehended.
Jeffrey Bloom, Clermont’s assigned counsel, moved to suppress the firearm. He based his motion on different facts, such as that Clermont had been sitting in a vehicle and that a weapon fell out when officers forcibly removed him.
Before the suppression hearing, Bloom asked to be relieved from the case, saying that the resignation of his associate had left him overwhelmed with work. Aloise denied the motion and relieved Bloom after the hearing was over.
Clermont, now 31, was convicted of second-degree criminal possession of a weapon and two counts of third-degree criminal possession of a weapon. He was sentenced to eight years in prison, and was released in August 2013.
In 2012, a Second Department panel ruled 3-1 that Clermont received effective representation in the case. But the following year, the Court of Appeals ruled that Clermont received ineffective assistance and remitted the case to Queens Supreme Court for reconsideration of Aloise’s denial of Clermont’s motion to suppress the handgun.
In May 2014, Aloise again denied the motion to suppress, and Clermont appealed.
The Second Department panel ruled that the officers lacked reasonable suspicion to pursue Clermont and thus the pursuit was unlawful. It also wrote that Clermont’s disposal of his weapon was “precipitated by the illegality and was not attenuated from it.”
Citing People v. Holmes, 81 NY2d 1056, 1058, the panel wrote that, for police officers to justify pursuit, they must have “reasonable suspicion that a crime has been, is being, or is about to be committed” and that “flight alone … even in conjunction with equivocal circumstances that might justify a police request for information, is insufficient to justify pursuit.”
“Reasonable suspicion,” the panel wrote, is defined as “that quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe criminal activity is at hand.”
Lunt’s experience with gang activity and his observation of Clermont adjusting his waistband did not establish reasonable suspicion, the panel wrote.
The panel consisted of Justices William Mastro, John Leventhal, Colleen Duffy and Betsy Barros. The decision was unsigned.
Allegra Glasshauser, formerly of Appellate Advocates, represented Clermont before leaving the office in July for a new position with the Federal Defenders of New York. Benjamin Litman, a staff attorney for Appellate Advocates, appeared for Clermont at the Sept. 17 oral arguments.
Assistant District Attorneys Castellano, Johnnette Traill and Christopher Blira-Koessler appeared for Queens District Attorney Richard Brown’s office.
BY Andrew Denney, New York Law Journal