People v. Anthony Barksdale


AD1 order dated October 15, 2013, affirming judgment of
conviction. Decision below: 110 AD3d 498, 974 NYS2d 347.
Read, J., granted leave July 8, 2014. Argued September 8, 2015.
ISSUE PRESENTED: Whether a person’s innocuous presence in the
lobby of a “trespass affidavit program” building creates an
“objective credible reason” for the police to conduct a DeBour levelone
inquiry. (Assigned counsel: Jan Hoth & Robert S. Dean, Center
for Appellate Litigation, 120 Wall Street, 28th Floor, NYC 10006.)

Issue before the Court: Defendant was present in the lobby of a “TAP” building in Manhattan. Buildings enrolled in the trespass affidavit program “solicit” police assistance because they are prone to trespassers and other crime. The lobby had signs denoting TAP enrollment stating that trespassers were subject to arrest. Seventeen-year-old Mr. Barksdale, who was standing in the lobby, was approached by the police and asked if he lived there. He responded that he did not and the officer demanded to know whom he was visiting. When Mr. Barksdale did not provide the name of the resident he was there to visit, the officer  arrested him. A subsequent search revealed a razor blade in his pocket. The Court was called on to determine whether a person’s mere presence in the lobby of a building enrolled in the “TAP” program provides the police with a De Bour level-one “objective credible reason” to approach and question. People v. De Bour, 40 N.Y.2d 210 (1976).


Held: Defendant’s mere presence in the lobby of a TAP building gave the officer an objective credible reason justifying the officer’s request for information.


CAL observes: For the first time, the Court has ruled that entirely innocent behavior, coupled with presence in a high crime area, provides an officer with the credible objective reason to request information. See, People v. McIntosh, 96 N.Y.2d 521, 527 (2001). As Judge Rivera pointed out in dissent, the Court’s ruling gives officers license to approach tenants in their own buildings and ask them for information on the assumption that they are not there lawfully. The Court’s ruling leaves open the question of what authority the officer has if the person standing in the lobby refuses to answer the officer’s request for information. Although unpreserved here, the majority suggests in a footnote that all hope is not lost for persons challenging approaches in TAP buildings: attorneys should consider challenging the officer’s demand for information as a level-two “common-law right to inquire,” that must be “activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion.” De Bour, 40 N.Y.2d at 223.