| People v Ayers |
| 2011 NY Slip Op 04869 [85 AD3d 1583] |
| June 10, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Sean M.Ayers, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), renderedNovember 19, 2008. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law,the plea is vacated, that part of the omnibus motion seeking to suppress evidence is granted, andthe matter is remitted to Monroe County Court for further proceedings on the indictment.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminalpossession of a weapon in the second degree (Penal Law § 265.03 [3]), defendant contendsthat his arrest was not supported by probable cause. We agree. At approximately 3:19 a.m. on awinter day, the police responded to the report of an attempted burglary by a homeowner who haddiscovered the door of his back porch ajar and one fresh snow footprint inside the house. Thehomeowner also reported that his wife's vehicle had been opened. One to two inches of snow hadfallen early that morning. The first officer to respond began following a footprint trail in the freshsnow, leading away from the house. The officer reported the direction of the footprint trail to twoother officers who were in patrol vehicles, canvassing the neighborhood for a suspect.Approximately one hour after the attempted burglary occurred, one of the officers in a patrolvehicle observed defendant running across the street and up the driveway of a house in proximityto the location of the attempted burglary. The officer got out of his vehicle and instructeddefendant to stop. The officer then approached defendant and placed him under arrest, anddefendant was immediately handcuffed. When defendant asked the officer why he had beenarrested, the officer responded, "for breaking into cars." Defendant was pat-searched, and a stolencredit card was found in one of his pockets. In addition, a rifle was found during an inventorysearch of defendant's vehicle, which was located on the same street as the house at which theattempted burglary took place.
Later that morning at the jail, defendant waived his Miranda rights and gave a writtenstatement to the police, apologizing for his crime. Subsequently, while in jail on the presentcharges, defendant [*2]made telephone calls to his girlfriend,which were monitored by the police. The police used the information from thosetelephone conversations to obtain evidence that defendant possessed weapons. Defendant wasindicted on 12 counts, three of which included criminal possession of a weapon.
It is undisputed that defendant was arrested immediately upon his encounter with the police.The arresting officer so acknowledged, and we conclude based on the record before us that areasonable person in defendant's position would have believed that, under all of thecircumstances, he or she was under arrest (see People v Yukl, 25 NY2d 585, 589 [1969],cert denied 400 US 851 [1970]). The police, however, lacked probable cause to arrestdefendant (see People v Russell, 269 AD2d 771 [2000]). The officer who arresteddefendant had observed him running on the same street where the reported attempted burglaryoccurred, sometime between 3:30 a.m. and 4:30 a.m. Although those facts tied defendant to thecrime that was being investigated, they justified, at most, a stop based on reasonable suspicion,not an arrest requiring probable cause (see People v De Bour, 40 NY2d 210, 222-223[1976]). Furthermore, "the police cannot rely on evidence obtained after an arrest to provideprobable cause" (People v Young, 202 AD2d 1024, 1026 [1994]; see People vWilliams, 191 AD2d 989 [1993], lv denied 82 NY2d 729 [1993]).
We further conclude that the police obtained additional evidence against defendant thatflowed directly from defendant's illegal arrest, and it cannot be said that such evidence was"sufficiently attenuated from the illegal arrest to be purged of the taint created by the illegality"(Russell, 269 AD2d at 772). Thus, the court erred in refusing to suppress the evidenceobtained as a result of defendant's illegal arrest as fruit of the poisonous tree (see generally People v Christianson, 57AD3d 1385, 1388 [2008]; People v Parris, 136 AD2d 882, 883-884 [1988],appeal dismissed 71 NY2d 1031 [1988]). " '[I]nasmuch as the erroneous suppressionruling may have affected defendant's decision to plead guilty' " (People v Glanton, 72 AD3d 1536,1538 [2010]), the plea must be vacated. Present—Scudder, P.J., Centra, Peradotto, Gorskiand Martoche, JJ.