| People v Creary |
| 2009 NY Slip Op 03189 [61 AD3d 887] |
| April 21, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Roger Creary, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Ronnie Jane Lamm of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (J. Doyle, J.),rendered December 18, 2006, convicting him of criminal possession of a weapon in the thirddegree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial,after a hearing, of those branches of the defendant's omnibus motion which were to suppressphysical evidence and his statements to law enforcement officials.
Ordered that the judgment is reversed, on the law, those branches of the defendant's omnibusmotion which were to suppress physical evidence and his statements to law enforcement officersare granted, the indictment is dismissed, and the matter is remitted to the County Court, SuffolkCounty, for the purpose of entering an order in its discretion pursuant to CPL 160.50.
On the afternoon of October 31, 2005, a weekday, a police sergeant on routine patrol sawwhat appeared to be a late-model car parked in a lot in front of an auto repair shop. Since the car"stood out," the sergeant pulled into the lot and stopped his vehicle behind and perpendicular tothe car. According to the sergeant, the three men occupying the car looked "quickly" at him andthen "quickly turned back." The front-seat passenger made "a motion towards the center consolearea." The defendant, who was the rear seat passenger "was looking to exit the vehicle, but [thesergeant] told him to remain within the [*2]vehicle." Thesergeant checked the driver's license and registration which were in order and, afterapproximately five minutes, confirmed that the defendant had a vehicle being worked on in therepair shop. The sergeant then allowed the defendant to exit the vehicle to go inside the shop tospeak with the mechanic. Meanwhile, noticing that the front seat passenger appeared extremelynervous, the sergeant asked him, "Do you have anything? Is there anything that you are hidingthat would make you nervous?" According to the sergeant, the passenger replied, "No, you cancheck, I will get out." When the passenger exited, the sergeant told him to walk toward the frontof the vehicle. The sergeant looked inside the car and "observed the handle of a black handgunprotruding from underneath the front passenger's seat." The front seat passenger, the driver, andthe defendant were all arrested and transported to the precinct where, without administeringMiranda warnings (see Miranda v Arizona, 384 US 436 [1966]), the sergeantadvised each individually that, unless the police could establish who actually owned the gun, allthree would be charged. After a brief discussion with his brother, the defendant stated that thegun was his and that he would give a statement to that effect to the detectives. The defendantwas subsequently advised of his Miranda rights and admitted to interrogating detectivesthat the gun was his.
The defendant alone was indicted for criminal possession of a weapon in the third degree. Hemoved, inter alia, to suppress the weapon and his statements to the police. After a hearing, thosebranches of his motion were denied and he was thereafter convicted following a jury trial. Wereverse.
Confining the occupants of a parked vehicle to their car, even temporarily, is theconstitutional equivalent of a stop. Thus, "before the police can forcibly or constructively stop anindividual as was done here by the order to remain in the car there must be some articulablefacts, which initially or during the course of the encounter, establish reasonable suspicion thatthe person is involved in criminal acts or poses some danger to the officers" (People vHarrison, 57 NY2d 470, 476 [1982]; see People v Packer, 49 AD3d 184, 188 [2008], affd 10NY3d 915 [2008]). Here, before pulling the police vehicle behind the defendant's vehicle in theparking lot and ordering the defendant to remain in his vehicle, the Sergeant did not havegrounds for a reasonable suspicion that the defendant or the other occupants of the vehicle wereeither involved in criminal acts or posed some danger to him (see People v Taylor, 31 AD3d 1141 [2006]). Accordingly, thatbranch of the defendant's omnibus motion which was to suppress the gun should have beengranted.
Moreover, the defendant's statements at the precinct should have been suppressed as well.When, at the precinct, the sergeant told the defendant that, unless the police could determine whothe true owner of the gun was, all three occupants of the vehicle would be charged with itspossession, he was engaging in the functional equivalent of interrogation in that he knew orshould have known that his comments were reasonably likely to elicit an incriminating response(see Rhode Island v Innis, 446 US 291, 301 [1980]; People v Ferro, 63 NY2d316, 319, 322 [1984], cert denied 472 US 1007 [1985]). The defendant's response wastherefore the product of custodial interrogation and, because he had not been givenMiranda warnings, his statement to the sergeant and his statements to the detectiveswhich followed shortly thereafter should have been suppressed (see People v Campbell,123 AD2d 878 [1986]).
In light of our determination, the defendant's remaining contentions are academic. Skelos,J.P., Fisher, Santucci and Balkin, JJ., concur.