| People v Kevin W. |
| 2012 NY Slip Op 00232 [91 AD3d 676] |
| Jnury 10, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v KevinW., Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C.Abbot, and Danielle S. Fenn of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gavrin, J.),rendered February 18, 2009, convicting him of criminal possession of a weapon in the seconddegree and resisting arrest, upon a jury verdict, adjudicating the defendant a youthful offender,and imposing sentence. The appeal brings up for review the denial (Aloise, J.), after a hearing, ofthat branch of the defendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is reversed, on the law, that branch of the defendant's omnibusmotion which was to suppress physical evidence is granted, the indictment is dismissed, and thematter is remitted to the Supreme Court, Queens County, for the purpose of entering an order inits discretion pursuant to CPL 160.50.
The defendant was accused of criminal possession of a weapon in the second degree andresisting arrest. A hearing was held on the defendant's omnibus motion, inter alia, to suppressphysical evidence. At the hearing, the People offered the testimony of, among others, one of thepolice officers involved in the incident, but not the other police officer involved in the incident.Following the hearing, the Judicial Hearing Officer (hereinafter the JHO) issued a reportrecommending, among other things, that the branch of the defendant's omnibus motion whichwas to suppress physical evidence be granted. The Supreme Court (Aloise, J.), inter alia, adoptedthe JHO's report and granted that branch of the defendant's omnibus motion which was tosuppress physical evidence.
Thereafter, the People moved to reargue the suppression motion. Although the People'smotion did not seek to reopen the hearing, the Supreme Court, over the defendant's objection,directed that the hearing be reopened so as to permit the People to present the testimony of thesecond police officer involved in the incident. Following the reopened hearing, the JHO issued areport recommending that the branch of the defendant's omnibus motion which was to suppressphysical evidence be denied. The Supreme Court (Aloise, J.), inter alia, adopted the JHO's reportand denied that branch of the defendant's omnibus motion which was to suppress physicalevidence.
The defendant was convicted, upon a jury verdict, of criminal possession of a weapon in thesecond degree and resisting arrest. The defendant appeals from the judgment of conviction. [*2]We reverse.
The Supreme Court erred in reopening the suppression hearing, as "[t]he People were givenevery opportunity to present their evidence at the original hearing and there is no basis to justifytheir being provided with a second bite of the apple" (People v Robinson, 100 AD2d 945,947 [1984]; see People v Havelka, 45 NY2d 636 [1978]; People v Broughton,163 AD2d 404, 405 [1990]). Based upon our review of the record, we conclude that, in rulingupon the People's motion for reargument, the Supreme Court, instead of reopening thesuppression hearing, should have granted reargument and, upon reargument, adhered to the initialsuppression order. In the initial suppression order, contrary to the People's contention, theSupreme Court correctly determined that the police lacked reasonable suspicion to stop thedefendant. Consequently, the physical evidence should have been suppressed, and, since, withoutthat evidence, there could not be sufficient evidence to prove the defendant's guilt of criminalpossession of a weapon in the second degree, that count of the indictment charging that offensemust be dismissed (see People v Rossi, 80 NY2d 952 [1992]; People v Smalls, 83 AD3d 1103[2011]).
In addition, under the circumstances of this case, the count of the indictment chargingresisting arrest must also be dismissed. The Supreme Court's initial suppression order determinedthat the police lacked reasonable suspicion to stop the defendant and, thus, necessarilydetermined that there was no probable cause to arrest the defendant and that there was not an"authorized arrest" (Penal Law § 205.30), which are essential elements of the crime ofresisting arrest.
In light of our determination, the defendant's remaining contention need not be addressed.Dillon, J.P., Balkin, Leventhal and Chambers, JJ., concur.