| People v Layou |
| 2010 NY Slip Op 02192 [71 AD3d 1382] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Michael J.Layou, Appellant. |
—[*1] Michael J. Layou, defendant-appellant pro se. Donald H. Dodd, District Attorney, Oswego (Michael G. Cianfarano of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.), renderedFebruary 2, 2009. The judgment convicted defendant, upon a jury verdict, of criminal possessionof a controlled substance in the seventh degree, obstructing governmental administration in thesecond degree, and resisting arrest.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law,those parts of the motion seeking to suppress tangible property and statements are granted, theindictment is dismissed, and the matter is remitted to Oswego County Court for proceedingspursuant to CPL 470.45.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofcriminal possession of a controlled substance in the seventh degree (Penal Law § 220.03),obstructing governmental administration in the second degree (§ 195.05), and resistingarrest (§ 205.30). We agree with the contention of defendant in his main brief that CountyCourt erred in admitting in evidence the cocaine found on defendant's person and at the scenebased on deficiencies in the chain of custody. Although "[g]aps in the chain of custody may beexcused when circumstances provide reasonable assurances of the identity and unchangedcondition of the evidence" (People vHawkins, 11 NY3d 484, 494 [2008]), here the People failed to establish either acomplete chain of custody or circumstances providing the requisite reasonable assurances of theidentity and unchanged condition of the evidence in question (see People v Childs, 29 AD3d709, 710 [2006], lv denied 7 NY3d 787 [2006]; People v Steiner, 148 AD2d980, 981 [1989]). The arresting officer testified at trial that he transported the drugs from thescene of defendant's arrest to the police station, where he placed the cocaine on a table in a roomand left it there. He further testified that, almost a month later, he transported the drugs from thestation to the crime laboratory for analysis. The arresting officer had no personal knowledge ofthe location of the drugs during the intervening time period, although he believed that they hadbeen secured in the evidence room by another officer. That other officer did not testify at trial,however, and no other witness testified that he or she had secured the drugs in the evidence roomafter defendant's arrest or retrieved the drugs from the evidence room before they were taken bythe arresting officer to the crime laboratory for testing approximately one month later. Thus, thetrial testimony provides no [*2]assurances that the drugs seizedfrom defendant were those analyzed at the crime laboratory (see People v Gamble, 94AD2d 960 [1983], lv denied 60 NY2d 590 [1983]; cf. People v Caldwell, 221AD2d 972 [1995], lv denied 87 NY2d 920 [1996]). We further note that there weresignificant weight discrepancies between the drugs seized from defendant and the drugs analyzedat the crime laboratory, and the People's witnesses failed to offer any reasonable explanation forthe discrepancies.
In any event, we further conclude that the court erred in refusing to suppress the tangibleproperty seized, i.e., the cocaine, and defendant's statements to the police. As defendant contendsin his pro se supplemental brief, suppression was warranted because the police lacked reasonablesuspicion to justify the initial seizure of his vehicle. Here, a police officer effectively seizeddefendant's vehicle when he pulled into the parking lot behind defendant's vehicle in such amanner as to prevent defendant from driving away (see People v Solano, 46 AD3d 1223, 1225 [2007], lvdenied 10 NY3d 817 [2008]; People v Nicodemus, 247 AD2d 833, 835 [1998],lv denied 92 NY2d 858 [1998]; cf. People v Ocasio, 85 NY2d 982, 984-985[1995]; People v Black, 59 AD3d1050, 1051 [2009], lv denied 12 NY3d 851 [2009]). Defendant's presence in avehicle at 3:40 a.m. in a parking lot located in the general vicinity of a burglary that the policewere investigating did not provide the police with reasonable suspicion that defendant hadcommitted, was committing, or was about to commit a crime (see People v May, 81NY2d 725, 727-728 [1992]). It is well settled that "innocuous behavior alone will not generate afounded or reasonable suspicion that a crime is at hand" (People v De Bour, 40 NY2d210, 216 [1976]). In this case, the arresting officer did not observe any conduct indicative ofcriminal activity at the time he seized the vehicle, the complainant who had reported the burglarydid not mention that the burglars fled in a vehicle, and the officer had no other informationtending to connect defendant or the occupant of his vehicle with the reported burglary (seeNicodemus, 247 AD2d at 835; seegenerally People v Taylor, 31 AD3d 1141, 1142 [2006]). Thus, even if there had been asufficient chain of custody, we nevertheless conclude that the judgment must be reversed in itsentirety, including those parts convicting defendant of resisting arrest and obstructinggovernmental administration (seeMatter of Marlon H., 54 AD3d 341 [2008]; People v Lupinacci, 191 AD2d 589[1993]), inasmuch as the police acted without the requisite reasonable suspicion to justify theinitial seizure of defendant's vehicle. Present—Smith, J.P., Peradotto, Carni, Pine andGorski, JJ.