| People v Johnson |
| 2010 NY Slip Op 09285 [79 AD3d 905] |
| December 14, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Appellant, v LazericJohnson, Respondent. |
—[*1] Adams, Sampson & Associates, LLC, Brooklyn, N.Y. (Tahanie A. Aboushi of counsel), forrespondent.
Appeal by the People from (1) an order of the Supreme Court, Queens County (Grosso, J.), datedApril 16, 2009, which, after a hearing, granted that branch of the defendant's omnibus motion whichwas to suppress physical evidence recovered from the defendant's vehicle, (2) an order of the samecourt dated May 14, 2009, which, after a hearing, granted that branch of the defendant's omnibusmotion which was to suppress physical evidence recovered from a police van, and (3), a decision of thesame court dated June 2, 2009.
Ordered that the appeal from the decision dated June 2, 2009, is dismissed, as no appeal lies froma decision (see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509 [1984]); and it is further,
Ordered that the order dated April 16, 2009, is affirmed; and it is further,
Ordered that the order dated May 14, 2009, is reversed, on the law and the facts, that branch ofthe defendant's omnibus motion which was to suppress physical evidence recovered from a police vanis denied, and the matter is remitted to the Supreme Court, Queens County, for further proceedings.
The resolution of issues of credibility made by a hearing court is entitled to great deference onappeal, and will not be disturbed unless it is manifestly erroneous or clearly unsupported by the record(see People v Shackleford, 57 AD3d578 [2008]; People v Sutherland,40 AD3d 890, 891 [2007]; People vCollier, 35 AD3d 628, 629 [2006]). The hearing court's determination as to the two policeofficers' credibility was not manifestly erroneous and was supported by the record (see People vRivera, 78 AD3d 1202 [2010]; cf. People v Hills, 295 AD2d 365 [2002]). Accordingly,we do not disturb the hearing court's finding that the traffic stop was improper and the arrest of thedefendant was unlawful. Therefore, we affirm the April 16, 2009, order granting that branch of thedefendant's omnibus motion which was to suppress the physical evidence recovered from his vehicleimmediately after his arrest.[*2]
However, the Supreme Court erred in granting that branch ofthe defendant's omnibus motion which was to suppress the physical evidence recovered from the policevan used to transport the defendant following his arrest. "Generally, when the police have acted illegally,evidence which 'has been come at by exploitation of that illegality' should be suppressed" (People vGethers, 86 NY2d 159, 161-162 [1995], quoting Wong Sun v United States, 371 US471, 488 [1963]). Under the attenuation exception to the exclusionary rule, "[t]he question to beresolved when it is claimed that evidence subsequently obtained is 'tainted' or is 'fruit' of a prior illegalityis whether the challenged evidence was [obtained] ' "by exploitation of [the initial] illegality or instead bymeans sufficiently distinguishable to be purged of the primary taint" ' " (Segura v United States,468 US 796, 804-805 [1984], quoting Wong Sun v United States, 371 US at 488; see People v Paulman, 5 NY3d 122,130-131 [2005]). Here, contrary to the Supreme Court's determination, the defendant's act ofabandoning a quantity of cocaine inside the police van used to transport him to the police precinctfollowing his arrest, is attenuated from the unlawful traffic stop and arrest inasmuch as the abandonmentwas an "independent act involving a calculated risk" (People v Boodle, 47 NY2d 398, 404[1979], cert denied 444 US 969 [1979]; see People v Ramirez-Portoreal, 88 NY2d99, 110 [1996]; People v Weekes, 52AD3d 1032, 1034-1035 [2008]; Matter of Deshorn L., 277 AD2d 238 [2000]).Accordingly, the May 14, 2009, order granting that branch of the defendant's omnibus motion whichwas to suppress the physical evidence recovered from the police van must be reversed. Rivera, J.P.,Dillon, Angiolillo and Austin, JJ., concur.