Thomas R. Newman

In People v. Holland,¹ a divided Court of Appeals (5-2) declined the opportunity to articulate the law governing hundreds of thousands of pedestrian stops performed annually by the New York City Police Department, "only a very small percentage of which actually result in the discovery of evidence of crime."² Instead, the Court dismissed a defendant's appeal from an Appellate Division order reversing a Supreme Court order that had granted a motion to suppress drugs found on defendant's person. The Supreme Court found defendant had been unlawfully detained and that the police illegality was not attenuated by defendant's scuffle with the police as he tried "to go," which led to his arrest for assault and disorderly conduct and search.

The Court of Appeals dismissed the defendant's appeal, finding that the Appellate Division's order, "while termed 'on the law,' was actually predicated upon a differing view concerning the issue of attenuation, which is a mixed question of law and fact" and, therefore, does not meet the requisites of CPL 450.90(2)(a)³ that the reversal be "upon the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal."⁴

A Stop and a Scuffle

The evidence adduced at the hearing upon the suppression motion, as summarized by Chief Judge Jonathan Lippman in his dissent,⁵ showed that upon observing defendant walking in the early morning in an area near a public housing project known for its high incidence of crime, Police Officer David Porras asked defendant to stop. Officer Porras asked whether defendant lived in the project, and defendant said he did not. The officer then asked for photo identification, which defendant provided. Officer Porras examined the identification and found it satisfactory; he acknowledged that his inquiry had at that point run its course. Nonetheless, he did not return defendant's photo identification and allow him to go on his way. Rather, he retained the identification and stood by without interceding as one of his partners approached and repeated the inquiries he, Porras, had just completed.

Defendant reportedly became agitated and, at the approach of yet a third police officer who, with his two partners, blocked his egress, either pushed (as recorded in the entries in the officers' memo books⁶) or punched Officer Porras in what the officers understood as an attempt "to go." A scuffle ensued in the aftermath of which defendant was arrested for assault and disorderly conduct, and then searched. Drugs were found on his person.

The Supreme Court found defendant had been illegally detained and that the illegality had not been attenuated by his attempt to get past the police officers "blocking [his] egress." The court observed, "[e]ven if there was a basis for initially requesting information from defendant . . . any such justification was exhausted after he answered Porr[a]s who was obligated to return the identification and allow him to leave. The continued detention was unlawful and the reaction of defendant proportionate to the circumstances. It does not attenuate the unlawful detention and render the contraband admissible."⁷

A divided Appellate Division "reversed, on the law," denied the motion to suppress and remanded the matter for further proceedings consistent with its opinion. The majority found that "[o]nce defendant punched Officer Porras, any allegedly unlawful conduct in stopping and questioning defendant was attenuated by his calculated, aggressive and wholly distinct conduct. . . . [I]t is of no moment whether defendant punched or pushed Officer Porras, because, as stated above, the police officers did not initiate or attempt to initiate physical contact with defendant."⁸

The dissenting justices in the Appellate Division, on the other hand, believed that "[i]n view of the officers' concession that defendant was trying to get away from them, the documentary evidence and Porras's eventual admission at the hearing that defendant pushed him, the limited physical force used against Porras by defendant was an immediate response to his unjustified detention. It does not constitute an independent act sufficiently attenuated from the unlawful detention so as to dissipate the illegal taint associated with it . . ., but was an immediate and direct consequence of that unlawful detention. There is thus no basis upon which to find attenuation and admit the evidence."⁹

Attenuation Analysis

In his dissent in the Court of Appeals, Chief Judge Lippman took a different approach. He did "not say that the Appellate Division was bound to resolve the attenuation issue as the motion court had and the dissenting justices would have, only that if it was to decide the question differently it had to perform an attenuation analysis?that is to say it had to make a conscientious effort to ascertain whether defendant's allegedly attenuating act was or was not directly precipitated by and a proportionate response to his closely antecedent illegal detention. To do this, it would have been essential for the Court to make some finding as to the nature and quality of the official illegality and defendant's following act."¹⁰

Here, the Appellate Division simply concluded that any alleged illegality, no matter how extreme or provocative, must have been attenuated by defendant's act of initiating physical contact with Officer Porras, even if that act consisted only of a push to get past the three officers illegally blocking his way. This was, in the end, not an attenuation analysis at all, but simply the announcement of an arbitrary rule that any physical contact with a police officer?no matter what its force or purpose?if not preceded by an attempt by the officer to contact the defendant, will be deemed distinct and unattributable to any precedent official illegality, no matter how provocative.¹¹

Since the Appellate Division made no such findings and "merely concluded that defendant's initiation of contact was per se attenuative, whatever the nature of the contact or of any antecedent official provocation," the dissent would have remitted the matter to the Appellate Division "for a proper determination of the attenuation issue."¹²

The majority in the Court of Appeals cited four cases in support of its dismissal of defendant's appeal, in each of which it was found that the reversal, "while termed 'on the law,' was necessarily a determination by the Appellate Division of a mixed question of law and fact."¹³ However, in none of them did the Court address the question of what happens when the appellant claims that the credible evidence leads inescapably to only one conclusion?attenuation, as a matter of law. That was the situation in People v. Holland, although it is not discussed in the majority's memorandum or the dissent.

During oral argument, counsel for appellant maintained that the Appellate Division applied an erroneous legal standard to the facts whereby even the most minimal use of physical force by a defendant automatically attenuates any prior illegal conduct by the police.¹⁴ In effect, the Appellate Division applied what Judge Robert S. Smith referred to as a "who strikes first" rule and found attenuation without any further analysis simply because "the police officers did not initiate or attempt to initiate physical contact with defendant."¹⁵

One of the judges then asked appellant's counsel whether he was saying there was no attenuation as a matter of law. Counsel replied, "We would ask that the Court finds that," and, continuing, he said that if it does not, then the matter should be remanded to the Appellate Division for application of the appropriate legal standard.

This raised a question of law on an important issue dealing with police-civilian encounters that the Court of Appeals could and, in the view of the dissenters, should have decided.

Jurisdiction

In People v. Alexander,¹⁶ where defendant claimed there was a lack of probable cause to authorize the seizure of a quantity of heroin, the Court of Appeals affirmed defendant's conviction stating that it "has no power to review factual determinations, save the situation, not now before us, where upon any view of the facts probable cause does not exist (People v. Leonti, 18 NY2d 384, 390 [1966] and the authorities cited therein . . . )." In People v. Leonti, where defendant challenged the voluntariness of his confession, the Court of Appeals reiterated the "guiding principle that where there are conflicting inferences to be drawn from the proof, the choice of inference is for the trier of the facts. And that choice is to be honored unless unsupported, as a matter of law."¹⁷

Thus, when it is claimed that "upon any view of the facts" only one conclusion can be reached, a question of law is presented that the Court of Appeals has jurisdiction to hear and determine. And that was the situation in Holland, where the dissenting justices in the Appellate Division and appellant's counsel in the Court of Appeals took the position that there was no attenuation as a matter of law.

While the Court of Appeals did not have to agree, it should have performed its own attenuation analysis and reached a determination on the merits, rather than avoid the issue by a cramped view of its jurisdiction. As Chief Judge Lippman stated: "When courts with the factual jurisdiction to make attenuation findings employ facile analytic shortcuts operating to shield from judicial scrutiny illegal and possibly highly provocative police conduct, an issue of law is presented that is, I believe, this Court's proper function to resolve."¹⁸ No provision in the New York State Constitution, the CPLR or the Rules of Practice of the Court of Appeals¹⁹ prevented the Court of Appeals from resolving that issue of law.

Thomas R. Newman is of counsel to Duane Morris and author of "New York Appellate Practice" (Matthew Bender). Steven J. Ahmuty Jr. is a partner at Shaub, Ahmuty, Citrin & Spratt. They are both members of the American Academy of Appellate Lawyers.

Notes

1. 74 A.D.3d 520 (1st Dept. 2010), app. dism.,_NY3d_, 2011 NY LEXIS 3660 (2011).
2. 2011 NY LEXIS 3660 at **9 (dissent).
3. The Court of Appeals may entertain an appeal from an order of an intermediate appellate court reversing an order of a criminal court only if it "determines that the intermediate appellate court's determination of reversal . . . was on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal." 2011 NY LEXIS 3660 at fn 1, **1-2
4. 2011 NY LEXIS 3660 at **1.
5. 74 A.D.3d at 528-529 (dissent); 2011 NY LEXIS 3660 at fn.2, **4 (dissent).
6. 74 A.D.3d at 527 (dissent).
7. 2011 NY LEXIS 3660 at **4 (dissent).
8. 74 A.D.3d at 522.
9. 74 A.D.3d at 529 (dissent).
10. 2011 N.Y. LEXIS 3660 at **7 - 8.
11. 2011 N.Y. LEXIS 3660 at **6 - 7.
12. 2011 N.Y. LEXIS 3660 at **8.
13. 2011 NY LEXIS 3660 at **1.
    
    People v. Mayorga, 64 N.Y.2d 864, 865-866 (1985)("Whether there has been an attenuating break in an interrogation is, as are most other determinations made in suppression matters which require the drawing of inferences from the facts, a mixed question of law and fact . . . Because the determination of the Appellate Division in this case was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal" (CPL 450.90 [2] [a]), this appeal does not lie.").
    
    People v. Lawrence, 74 N.Y.2d 732 (1989)("The reversal, while termed "on the law", was necessarily a determination by the Appellate Division of a mixed question of law and fact.").
    
    People v. Howard, 74 N.Y.2d 943 (1989)("The reversal, while termed one "on the law" was necessarily a determination by the Appellate Division of a mixed question of law and fact.").
    
    People v. Hinton, 81 N.Y.2d 867 (1993)("While the order of the Appellate Division appealed from states that its reversal was based solely "on the law", this recital is not binding on this Court (see, People v. Dercole, 52 NY2d 956). The reversal, while termed to be "on the law", was necessarily a determination by the Appellate Division of a mixed question of law and fact.").
14. www.nycourts.gov/ctapps/ Oral Argument Archive, Nov. 16, 2011, No. 236.
15. 74 A.D.3d at 522.
16. 37 N.Y.2d 202 (1975).
17. 18 N.Y.2d at 390.
18. 2011 N.Y. LEXIS 3660 at **9.
19. 22 NYCRR Part 500.

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