NYPD Had No Right to Stop Man with Drug Bag, Panel Says

, New York Law Journal

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A state appeals panel on Tuesday said New York City police had no good reason to stop a man for taking a bag of what turned out to be marijuana from a driver who had been pulled over, and reversed the man's drug possession conviction.

The 4-1 ruling from the Appellate Division, First Department, in People v. Major, 5779/08, vacated a two-year prison sentence imposed by Manhattan Acting Supreme Court Justice Gregory Carro (See Profile). Justice Rosalyn Richter (See Profile) wrote the majority opinion, which was joined by Justices John Sweeny Jr. (See Profile), Leland DeGrasse (See Profile) and Helen Freedman (See Profile). Justice Angela Mazzarelli (See Profile) dissented.

The defendant, Javone Major, was arrested on Nov. 6, 2008. A police officer, Raymond Mongelli, was driving a marked police car on Lenox Avenue in Harlem when he saw a black Lexus whose windows were heavily tinted, which is illegal.

Mongelli pulled over the driver, Jamaine Glover, on the north side of 115th Street and asked him for his license. Glover didn't have a license but gave the officer his name and date of birth. Mongelli testified that Glover appeared nervous, and the officer went back to his police car to look him up in his computer.

While accessing Glover's information, and finding that his license had been revoked, he saw Major standing at the window of the Lexus and take a black plastic bag from Glover through the car window.

At that point, Mongelli called for backup, got out of his car and told Major to stop and hand over the bag. Major kept walking, moving toward the officer, who then moved to intercept him. Two backup officers arrived in a patrol car with lights and sirens on and began walking toward Major, who then threw the bag onto the hood of a parked car.

When the bag landed, police found it contained marijuana, and Major was charged with third-degree possession.

Major's attorney did not try to suppress the bag as evidence. In an earlier appeal, the First Department ruled that his counsel's failure to move to suppress constituted ineffective assistance of counsel, and sent the case back for a suppression hearing. People v. Major, 96 A.D.3d 677 (1st Dept. 2012). The lower court declined to suppress the bag, and Major appealed.

Richter, in her reversal of the lower court's suppression finding, wrote that the police officers' actions amounted to a "forcible stop." Under People v. DeBour, 40 NY2d 210, 223, police may approach and question a person if they have a "founded suspicion that criminal activity is afoot," but may only forcibly stop someone if they have a "reasonable suspicion" that a person has committed or is about to commit a crime.

Mongelli and the other officers, she wrote, had grounds to ask Major questions but not to stop him. She noted that "no one saw any indication that the bag, or even the car, contained contraband."

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