| People v Pearson |
| 2009 NY Slip Op 01510 [59 AD3d 743] |
| February 24, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Appellant, v Hezekiah Pearson, Respondent. |
—[*1] Judah Maltz, Kew Gardens, N.Y., for respondent.
Appeal by the People from an order of the Supreme Court, Queens County (Kron, J.), datedFebruary 14, 2008, which, upon reargument, adhered to its original determination in an orderdated January 14, 2008, confirming the recommendation of a Judicial Hearing Officer (O'Dwyer,J.H.O.), dated January 9, 2008, made after a hearing, and granting those branches of thedefendant's omnibus motion which were to suppress physical evidence and his statement to lawenforcement officials.
Ordered that the order dated February 14, 2008 is affirmed.
Without a "founded suspicion that criminal activity is afoot" (People v De Bour, 40NY2d 210, 223 [1976]), a police officer may not do more than request information from a personthe officer encounters on the street (see People v Hollman, 79 NY2d 181, 184, 191-192[1992]; People v De Bour, 40 NY2d at 213, 219). Here, the officer approached thedefendant only because of the officer's concern that the defendant might have been the victim ofan automobile accident. Neither the officer's initial inquiry of the defendant nor thecircumstances surrounding the encounter gave rise to any additional indication of criminalbehavior. As a result, there was no legitimate basis for the officer's request that the defendantalight from the bicycle on which he was seated. The subsequent discovery of the knife, whichcame into the police officer's view only after the defendant had complied with the officer'srequest, "cannot validate an encounter that was not justified at its inception" (People v Moore, 6 NY3d 496, 498[2006]). The hearing court also properly suppressed the defendant's subsequent statement topolice as the fruit of the illegal search and seizure (see Wong Sun v United States, 371US 471, 484 [1963]; Matter of MarlonH., 54 AD3d 341 [2008]). Prudenti, P.J., Spolzino, McCarthy and Leventhal, JJ.,concur.