| People v Lopez |
| 2010 NY Slip Op 06178 [75 AD3d 610] |
| July 20, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Christian Lopez, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Sarah S. Rabinowitz and Laurie K.Gibbons of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Honorof,J.), rendered May 11, 2009, convicting him of criminal possession of a controlled substance inthe fifth degree, criminal possession of a controlled substance in the seventh degree, andunlawful possession of marihuana, upon a jury verdict, and imposing sentence. The appealbrings up for review the denial, after a hearing, of those branches of the defendant's omnibusmotion which were to suppress physical evidence and his statements to law enforcementofficials.
Ordered that the judgment is reversed, on the law and the facts, those branches of thedefendant's omnibus motion which were to suppress physical evidence and his statements to lawenforcement officials are granted, the indictment is dismissed, and the matter is remitted to theSupreme Court, Nassau County, for the purpose of entering an order in its discretion pursuant toCPL 160.50.
Shortly after midnight on May 21, 2008, two police officers in an unmarked car pulled infront of a vehicle occupied by the defendant and two passengers, in the parking lot behind a barwhich the police claimed was known for drug activity. The arresting officer, who testified at thesuppression hearing, did not recall whether the engine of the defendant's vehicle was running.However, the arresting officer noted that the interior light of the vehicle was on, and that thedefendant was looking down.
When asked at the suppression hearing whether the police vehicle blocked the defendant'svehicle from pulling out of the parking space without hitting the police vehicle, the arrestingofficer replied "Might have been close. I can't recall." After pulling in front of the vehicle, theofficers approached the vehicle, the arresting officer shined his flashlight inside, and that officerobserved the defendant holding what he believed to be a bag of cocaine and a bag of marihuana.The police removed the defendant from the vehicle and placed him under arrest. Thereafter, thedefendant made incriminating statements to the police.
The hearing court denied those branches of the defendant's omnibus motion which were tosuppress physical evidence and his statements to the police, finding that the police properly[*2]approached the defendant's vehicle because its occupantswere acting suspiciously.
The conduct of the police in pulling in front of the defendant's vehicle, and blocking hisability to exit the parking lot, constituted a stop, which required reasonable suspicion that thedefendant or other occupants of the vehicle were either involved in criminal activity or posedsome danger to the police (see People v Jennings, 45 NY2d 998 [1978]; People v Creary, 61 AD3d 887,889 [2009], citing People v Harrison, 57 NY2d 470, 476 [1982]). The fact that thedefendant was sitting in a vehicle in the parking lot of an open business, with the interior light ofhis vehicle on, looking down, is capable of numerous innocuous explanations, and cannot becharacterized as suspicious conduct (see People v Bulvard, 213 AD2d 263 [1995]).Accordingly, the stop was illegal, and the physical evidence and the defendant's statementsshould have been suppressed as the fruits of that illegal action.
In light of our determination, the defendant's remaining contentions need not be addressed.Skelos, J.P., Hall, Roman and Sgroi, JJ., concur.