| People v Small |
| 2013 NY Slip Op 06735 [110 AD3d 1138] |
| October 17, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vNaquan T. Small, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joshua S. Shapiro of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered May 11, 2010, convicting defendant upon his plea of guilty of the crime ofattempted assault in the second degree.
In the early hours of January 1, 2009, police responded to a second disturbance calloutside a nightclub in the Village of Endicott, Broome County and arrested defendant fordisorderly conduct. Defendant was transported to the police station, where an incidentreportedly occurred in which a police officer was injured while trying to remove fromdefendant's mouth a substance later established to be crack cocaine, after defendantrefused a directive to remove it. A six-count indictment was subsequently handed upcharging defendant with disorderly conduct outside the nightclub and, regarding theincident at the station, two counts of assault in the second degree (intentional and felonyassault, i.e., causing physical injury during the commission of a felony), tampering withphysical evidence (attempting to swallow the cocaine, the underlying felony for thefelony assault count), criminal possession of a controlled substance in the seventh degreeand obstructing governmental administration in the second degree.
Defendant's omnibus motion requested, among other relief, a Dunawayhearing, contending that police lacked probable cause to arrest him outside the nightclubfor disorderly conduct and that all of the charges against him should be dismissed. At theDunaway hearing, [*2]the People offered onlythe testimony of one of the responding officers pertaining to the circumstancessurrounding defendant's arrest outside the nightclub. Neither the officer involved in theincident at the police station nor any other witnesses to it testified. Defendant called threeeyewitnesses to his arrest, arguing that his arrest was unlawful, that the subsequentlyseized evidence should be suppressed as the fruit of the poisonous tree, and that allcharges must be dismissed.
Crediting the defense witnesses, County Court ruled that police lacked probablecause to arrest defendant, inviting counsel to address the effect of this finding on theadmissibility of the evidence and remaining charges. The court—based in partupon the People's concession—ruled that, because the police lacked probablecause to arrest defendant for disorderly conduct (count 6) at the nightclub, that countshould be dismissed and the cocaine seized from defendant at the police station should besuppressed, but only for purposes of the criminal possession charge (count 4); the courtthen dismissed that possessory charge, the intentional assault charge (count 1) and theobstruction charge (count 5). However, the court concluded that dismissal of count 2(felony assault) and count 3 (tampering) was not warranted based upon its finding that"defendant's act of free will, in attempting to 'suppress' [i.e., swallow] the physicalevidence" did not flow from the unlawful arrest; therefore, the People would be allowedto prove at trial that the physical evidence that defendant sought to conceal in his mouthunder those counts was cocaine. Defendant subsequently entered a guilty plea toattempted assault in the second degree and, after his motions to withdraw his plea weredenied, he was sentenced to 1½ to 3 years in prison.
As the People candidly concede on appeal, given County Court's finding[FN1]that defendant's arrest was unlawful, defendant is correct that the court erred in failing tosuppress the cocaine seized from him at the police station as the fruit of that arrest,including as it related to counts 2 and 3. This issue survives defendant's guilty plea(see CPL 710.70 [2]). Under well-established exclusionary rule principles, wherepolice have engaged in unlawful activity—here, by arresting defendant withoutprobable cause—evidence which is a result of the "exploitation of that illegality" issubject to suppression as the "fruit of the poisonous tree" unless one of the recognizedexceptions to the exclusionary rule is applicable (Wong Sun v United States, 371US 471, 488 [1963] [internal quotation marks and citation omitted]; see People v Jones, 21 NY3d449, 454-455 [2013]; People v Gethers, 86 NY2d 159, 161-162 [1995];see also United States v Crews, 445 US 463, 470 [1980]). The exception at issuehere, as specifically decided by County Court thereby preserving the issue for appeal(see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 493 [2008]; People v Prado, 4 NY3d725, 726 [2004]), is attenuation, that is, whether the production of the cocaineevidence during defendant's illegal detention resulted from the exploitation of thatillegality, directly or derivatively (see Segura v United States, 468 US 796,804-805 [1984]; Brown v Illinois, 422 US 590, 602-604 [1975]; Wong Sun vUnited States, 371 US at 488; People v Harris, 77 NY2d 434, 440-441[1991]; People v Conyers, 68 NY2d 982, 984 [1986]). The focus of theattenuation exception is "on the presence or absence of 'free will' or voluntarinessregarding a defendant's . . . acts which follow illegal police conduct; thus,the attenuation inquiry resolves whether the causal connection between the policemisconduct and the later discovery of the challenged evidence is so far removed as todissipate the taint" (People vRichardson, 9 AD3d 783, 788 [2004], lv denied 3 NY3d 680 [2004];see Segura v United [*3]States, 468 US at 805)."That determination requires consideration of the temporal proximity of the arrest and[acquisition of evidence] . . . , the presence of intervening circumstancesand, particularly, the purpose and flagrancy of the official misconduct" (People vConyers, 68 NY2d at 983 [citations omitted]; see Brown v Illinois, 422 USat 603-604; People v Bradford, 15 NY3d at 333; People v Jones, 21NY3d at 455).
Given the complete lack of testimony at the Dunaway hearing regarding thepost-illegal-arrest incident at the police station—including any interveningcircumstances—in which cocaine evidence was reportedly seized from defendant'sperson, we find that the People failed to satisfy their burden of proving the applicabilityof the attenuation exception. That is, the People did not prove that the evidence was notacquired by exploiting the illegal arrest but, rather, came about by means "sufficientlydistinguishable from [the illegality] to be purged of illegality" (People v Johnson,66 NY2d 398, 407 [1985]; see Brown v Illinois, 422 US at 603-604; People vBorges, 69 NY2d 1031, 1033 [1987]). Thus, County Court's finding of attenuation isnot supported by the hearing record.[FN2]In view of the failure to prove that any exception is applicable, the general exclusionaryrule applies, the seizure of cocaine following defendant's illegal arrest is deemed theproduct thereof, and it should have been suppressed as to all counts of the indictment(see People v Gethers, 86 NY2d at 162).
As the People also acknowledge, the suppressed cocaine is the only "physicalevidence" that supports the tampering with physical evidence charge (see PenalLaw § 215.40 [2] [count 3]), which is the sole predicate felony for the remainingfelony assault count (see Penal Law § 120.05 [6] [count 2]). The Peopleconcede on appeal that these counts "would not be provable at trial with the cocainesuppressed" and, agreeing with the defense, admit that "the remedy in this case issuppression of the cocaine, vacatur of . . . defendant's guilty plea, anddismissal of the remaining counts of the indictment."
Rose, J.P., Garry and Egan Jr., JJ., concur. Ordered that the judgment is reversed, onthe law, motion to suppress granted in its entirety, plea vacated, and indictment dismissedin its entirety.
Footnote 1: The People do notcontest County Court's ruling that police lacked probable cause to arrest defendant.
Footnote 2: Notably, defendant'ssubsequent admission during the plea allocution cannot be relied upon to retroactivelysupport the suppression decision.