In re Jakwon R.

[724] In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the Presentment Agency appeals from (1) an order of the Family Court, Kings County (Toussaint, J.), dated March 26, 2012, which, after a hearing, granted that branch of Jakwon R.’s omnibus motion which was to suppress a BB gun recovered from his backpack, and (2) an order of the same court dated March 27, 2012, which dismissed the petition. Ordered that the orders are reversed, on the law, without costs or disbursements, that branch of Jakwon R.’s omnibus motion which was to suppress the BB gun is denied, the petition is reinstated, and the matter is remitted to the Family Court, Kings County, for further proceedings consistent herewith. “[I]n [the] difficult area of street encounters between private citizens and law enforcement officers . . . the events must be viewed and considered as a whole, remembering that reasonableness is the key principle when undertaking the task of balancing the competing interests presented” (People v Chestnut, 51 NY2d 14, 23 [1980], cert denied 449 US 1018 [1980]; see People v Carmona-Caviedes, 200 AD2d 627, 628-629 [1994]; People v Tratch, 104 AD2d 503, 504 [1984]). “A determination of reasonableness turns upon the facts of each case” (People v Batista, 88 NY2d 650, 653 [1996]; see People v Chestnut, 51 NY2d at 22). “At a suppression hearing, the Presentment Agency bears the burden of establishing the legality of police conduct in the first instance” (Matter of Robert D., 69 AD3d 714, 716 [2010]; see People v Berrios, 28 NY2d 361, 367 [1971]; People v James, 72 AD3d 844, 844 [2010]; People v Thomas, 291 AD2d 462, 463 [2002]). The respondent, however, bears the ultimate burden of proving, by a preponderance of the credible evidence, that the evidence should not be used against him or her (see People v Berrios, 28 NY2d at 367; People v Spann, 82 AD3d 1013, 1014 [2011]; People v Thomas, 291 AD2d at 463). At the suppression hearing in this case, the Presentment Agency established that the police had reasonable suspicion that the respondent and his two companions were the individuals described in a radio run as the perpetrators of a robbery which occurred approximately 10 minutes prior to the stop of the respondent and his companions (see generally People v Martinez, 80 NY2d 444, 447 [1992]; People v De Bour, 40 NY2d 210, 223 [1976]; People v Shuler, 98 AD3d 695, 696 [2012]; People v Davenport, 92 AD3d 689, 690 [2012]). The police were justified in stopping and detaining the respondent and the two [725] other individuals based on the similarities between them and the individuals described over the radio, including the number of individuals and what they were wearing, the close proximity of the three to the site of the crime and their presence at a location toward which the perpetrators were reported to have been traveling, and the short passage of time between the crime and observation of the three individuals (see People v Palmer, 84 AD3d 1414, 1414 [2011]; People v James, 72 AD3d at 844-845; People v Hines, 46 AD3d 912, 913 [2007]; People v Private, 259 AD2d 504, 504 [1999]). Further, based on the radio report they received, the police officers had reasonable suspicion that one of the three individuals was carrying a firearm, which had just been used in committing the robbery. Under these circumstances, the police were permitted to “conduct a frisk or take other protective measures” (People v Shuler, 98 AD3d at 696; see Terry v Ohio, 392 US 1, 29-30 [1968]). Contrary to the respondent’s contention, the police were not limited to a pat down of the his person, but were justified, “on grounds of safety and precaution,” in examining the respondent’s backpack, a “personal item[ ] capable of concealing a weapon within the suspect’s grabbable reach” (People v Brooks, 65 NY2d 1021, 1023 [1985]; see People v Davis, 64 NY2d 1143 [1985]; People v Moore, 32 NY2d 67 [1973], cert denied 414 US 1011 [1973]; People v Shackleford, 57 AD3d 578, 579 [2008]; People v Tratch, 104 AD2d at 504). As the respondent failed to prove, by a preponderance of the credible evidence, that the evidence should not be used against him (see generally People v Berrios, 28 NY2d at 367; People v Spann, 82 AD3d at 1014; People v Thomas, 291 AD2d at 463), the Family Court erred in granting that branch of the respondent’s omnibus motion which was to suppress the BB gun. Under the circumstances of this case, since suppression is being denied, the petition must be reinstated and the matter remitted to the Family Court, Kings County, for further proceedings. Angiolillo, J.E, Dickerson and Sgroi, JJ., concur.