| Matter of Marlon H. |
| 2008 NY Slip Op 06568 [54 AD3d 341] |
| August 5, 2008 |
| Appellate Division, Second Department |
| In the Matter of Marlon H., Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Elizabeth S. Natrella and FayNg of counsel), for respondent.
In related juvenile delinquency proceedings pursuant to Family Court Act article 3, theappeals are from (1) an order of disposition of the Family Court, Kings County (Turbow, J.),under docket No. D-11660-06, dated October 19, 2006, which, upon a fact-finding order of thesame court dated August 1, 2006, made after a hearing, finding that the appellant had committedacts which, if committed by an adult, would have constituted the crimes of criminal possession ofa weapon in the third degree, resisting arrest, and possession of pistol or revolver ammunitionadjudged him to be a juvenile delinquent and placed him in the custody of the New York StateOffice of Children and Family Services for a period of 12 months, and (2) an order of the samecourt, under docket No. D-27561-05, also dated October 19, 2006. The appeal from the order ofdisposition under docket No. D-11660-06 brings up for review the denial, after a hearing, of thatbranch of the appellant's omnibus motion which was to suppress physical evidence.
Ordered that the appeal from the order dated October 19, 2006, under docket No.D-27561-05, is dismissed as abandoned, without costs or disbursements; and it is further,
Ordered that the order of disposition dated October 19, 2006, under docket No. D-11660-06,is reversed, on the law and the facts, without costs or disbursements, that branch of theappellant's omnibus motion which was to suppress physical evidence is granted, the fact-findingorder dated August 1, 2006, is vacated, and the petition is dismissed.[*2]
The testimony and other evidence presented at thesuppression hearing did not support the Family Court's finding that Detective Winslow hadreasonable suspicion to stop the appellant (cf. People v Moore, 6 NY3d 496 [2006]; People v Hollman,79 NY2d 181 [1992]; People v De Bour, 40 NY2d 210 [1976]). Therefore, thephysical evidence should have been suppressed as the fruit of an illegal stop (cf. Wong Sun vUnited States, 371 US 471, 488 [1963]). Without the physical evidence, there is no basis tofind that the appellant committed the acts of criminal possession in question (cf. PenalLaw § 265.02 [4]). Because the stop was unlawful, the arrest was unauthorized and, thus,the resisting arrest finding cannot stand (cf. People v Felton, 78 NY2d 1063 [1991];People v Peacock, 68 NY2d 675). Mastro, J.P., Dillon, Eng and Belen, JJ., concur.