| People v Stock |
| 2008 NY Slip Op 10300 [57 AD3d 1424] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Deborah Stock,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Michael J. Hillery of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.), renderedJanuary 7, 2008. The judgment convicted defendant, upon her plea of guilty, of driving whileintoxicated, a class E felony.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law, theplea is vacated, that part of the motion seeking to suppress evidence is granted, the indictment isdismissed, and the matter is remitted to Supreme Court, Erie County, for proceedings pursuant to CPL470.45.
Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty of felonydriving while intoxicated (Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c] [former(i)]). We agree with defendant that Supreme Court erred in refusing to suppress the evidence obtainedas the result of the warrantless stop of the vehicle that she was driving. The stop may be deemedproper only if it was based upon a reasonable suspicion of criminal activity (see People vSpencer, 84 NY2d 749, 753 [1995], cert denied 516 US 905 [1995]; People vMay, 81 NY2d 725, 727 [1992]), and here the police lacked the requisite reasonable suspicion.According to the suppression hearing testimony of the police officer who stopped the vehicle driven bydefendant, he observed defendant shortly after midnight as she was leaving the parking lot of a grouphome and was pulling onto a roadway. The officer testified that he believed that defendant'spresence at that location was suspicious because the group home had been closed for renovations, theparking lot was empty, and he had not observed vehicles in that parking lot on previous night patrols.After following defendant's vehicle for a short distance, the officer pulled the vehicle over, whereuponhe noticed that defendant smelled of alcoholic beverages, was slurring her speech, and had glassy eyes.The officer testified, however, that he did not observe defendant driving erratically or violating anytraffic laws before stopping her vehicle. The People's contention that the stop was justified becausedefendant was leaving the parking lot of a closed group home shortly after midnight lacks merit. Thatfact alone, which is in effect no more than a "[m]ere 'hunch' or 'gut reaction,' " is insufficient to create therequisite reasonable suspicion that criminal activity was afoot (People v Sobotker, 43 NY2d559, 564 [1978]; see People v Morrison, 161 AD2d 608, 608-609 [1990]; People [*2]v Spicer, 105 AD2d 1100 [1984]). In view of our conclusion thatthe court should have suppressed the evidence obtained as the result of the illegal stop of defendant'svehicle, defendant's guilty plea must be vacated (see People v Washburn, 309 AD2d 1270,1271 [2003]; People v Wright, 285 AD2d 984 [2001]). Moreover, because our determinationresults in the suppression of all evidence supporting the crimes charged, the indictment must bedismissed (see Washburn, 309 AD2d at 1271). Present—Scudder, P.J., Hurlbutt,Peradotto, Green and Gorski, JJ.