People of the State of New York v. Malik Clea
Attorneys and Parties
Brief Summary
Criminal law — suppression of evidence and scope of New York Penal Law § 265.09 [1] [defines criminal use of a firearm in the first degree as committing a class B violent felony while possessing a loaded deadly weapon or displaying what appears to be a firearm] and § 265.09 [2] [requires an additional consecutive five-year sentence when, upon a § 265.09 (1) conviction, the defendant displays a loaded operable weapon in furtherance of the underlying class B violent felony].
County Court denied suppression, the jury convicted on multiple violent felonies including criminal use of a firearm in the first degree, and the court imposed additional consecutive five-year terms under § 265.09 (2) on several counts.
The Appellate Division vacated the additional consecutive five-year sentences imposed under § 265.09 (2) on counts 1, 2, 3, 5, and 7.
Counts 1 (attempted murder) and 7 (assault) were not the underlying predicate class B felonies for the § 265.09 (1) conviction; counts 2 (burglary first) and 5 (robbery first) include firearm use/display as elements and, under People v. Brown, cannot also serve as the predicate for criminal use of a firearm; and although count 3 (burglary first based on causing physical injury) could serve as a predicate, the record did not establish a jury finding that defendant displayed a loaded operable firearm in furtherance of that crime as required by § 265.09 (2).
Background
Shortly after a shooting inside an apartment, police received a be-on-the-lookout (BOLO) for a Black male of shorter stature with a beard wearing a white t-shirt. Within minutes and one block from the scene, an officer observed defendant matching the description, acting furtively, and ducking between cars. When the officer attempted to approach, defendant fled; he was apprehended in a nearby backyard, where officers observed blood on his pants. The incident involved the intruder shooting the victim in the face and groin during a kitchen confrontation, interacting with the victim's girlfriend, and leaving with money and drugs.
Lower Court Decision
County Court denied defendant's suppression motion, concluding the police conduct was lawful, and a jury convicted defendant of attempted murder in the second degree, two counts of burglary in the first degree, robbery in the first degree, assault in the first degree, criminal use of a firearm in the first degree, and criminal possession of a weapon in the second degree. The court applied Penal Law § 265.09 (2) to impose additional consecutive five-year sentences on several counts.
Appellate Division Reversal
The Appellate Division held that review of suppression was confined to the hearing record, found a founded suspicion for the initial approach, reasonable suspicion for pursuit based on flight, proximity, and matching description, and probable cause upon observing blood. The court found the verdict not against the weight of the evidence, including intent for attempted murder. On sentencing, it modified by vacating the additional consecutive five-year terms imposed under § 265.09 (2) on counts 1, 2, 3, 5, and 7 and otherwise affirmed, finding the sentence as modified not unduly harsh or severe.
Legal Significance
Clarifies that Penal Law § 265.09 (2) applies only where the class B violent felony that underlies the criminal use of a firearm conviction is identified as the predicate and the record establishes a jury finding that the defendant displayed a loaded operable firearm in furtherance of that underlying felony. Class B felonies that themselves require firearm use or display cannot serve as the predicate for criminal use under People v. Brown. The decision also reaffirms that flight plus temporal and spatial proximity to a crime scene and a matching BOLO description can supply reasonable suspicion, and that appellate review of suppression rulings is limited to the hearing record.
Sentence enhancements under Penal Law § 265.09 (2) are limited to the underlying predicate class B violent felony for the criminal use count and require proof of display of a loaded operable firearm in furtherance of that crime; enhancements cannot be stacked onto counts that either were not the predicate or already include firearm use as an element.