| People v Cady |
| 2013 NY Slip Op 00627 [103 AD3d 1155] |
| February 1, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vMichael A. Cady, Appellant. (Appeal No. 1.) |
—[*1] Sandra Doorley, District Attorney, Rochester (Matthew Dunham of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D.Valentino, J.), rendered January 12, 2010. The judgment convicted defendant, upon hisplea of guilty, of criminal possession of a weapon in the second degree (two counts) andcriminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law, the plea is vacated, those parts of the motion seeking to suppress tangibleproperty and statements are granted, the indictment is dismissed, and the matter isremitted to Supreme Court, Monroe County, for proceedings pursuant to CPL 470.45.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himupon his plea of guilty of two counts of criminal possession of a weapon in the seconddegree (Penal Law § 265.03 [1] [b]; [3]) and one count of criminal possession of aweapon in the third degree (§ 265.02 [1]). In appeal No. 2, defendant appeals froma resentence on his conviction.
With respect to appeal No. 1, defendant contends that Supreme Court erred inrefusing to suppress the handgun that he discarded while being pursued by the police andhis subsequent statements to the police. According to defendant, the police lacked areasonable suspicion to justify the pursuit. We agree.
At the suppression hearing, the People presented evidence that, at approximately11:00 p.m. on January 31, 2009, police officers were patrolling the Dayton Street area inthe City of Rochester in an attempt to locate an individual who had shot a police officerthat afternoon. Numerous officers were involved in the investigation, which involvedestablishing perimeters and engaging people who might have information about theshooting or the suspect. Defendant was observed by police walking in the area of HudsonAvenue and Avenue D, which was within a block or two of where the shooting occurred.As the People acknowledge, defendant was not a suspect in the shooting. Two uniformedofficers approached defendant and attempted to speak with him, whereupon defendantsaid, "What, we can't go to the store?" Defendant had been walking toward a store thatwas open for business at that time. Before the officers were able to [*2]answer defendant's question, defendant turned his back onthem, made a gesture with his arms toward his waistband, and began running. The policepursued defendant on foot and observed him discard a handgun from his pocket as hewas being tackled by a fellow officer.
As an initial matter, we note that defendant does not dispute that the police had anobjective credible reason to approach defendant to request information about theshooting, thereby rendering the police encounter lawful at its inception (see People vDe Bour, 40 NY2d 210, 220 [1976]). "With respect to the subsequent pursuit, it iswell settled that 'the police may pursue a fleeing defendant if they have a reasonablesuspicion that defendant has committed or is about to commit a crime' " (People v Riddick, 70 AD3d1421, 1422 [2010], lv denied 14 NY3d 844 [2010], quoting People vMartinez, 80 NY2d 444, 446 [1992]). Flight alone, however, " 'is insufficient tojustify pursuit because an individual has a right "to be let alone" and refuse to respond topolice inquiry' " (id., quoting People v Holmes, 81 NY2d 1056, 1058[1993]). Nevertheless, "defendant's flight in response to an approach by the police,combined with other specific circumstances indicating that the suspect may beengaged in criminal activity, may give rise to reasonable suspicion, the necessarypredicate for police pursuit" (People v Sierra, 83 NY2d 928, 929 [1994][emphasis added]; see Riddick, 70 AD3d at 1422). "It is further well settled thatactions that are 'at all times innocuous and readily susceptible of an innocentinterpretation . . . may not generate a founded suspicion of criminality' "(Riddick, 70 AD3d at 1422).
Here, "the fact that defendant reached for his waistband, absent any indication of aweapon such as the visible outline of a gun or the audible click of the magazine of aweapon, does not establish the requisite reasonable suspicion that defendant hadcommitted or was about to commit a crime" (id. at 1422-1423; see Sierra,83 NY2d at 930; cf. People vBachiller, 93 AD3d 1196, 1197-1198 [2012], lv dismissed 19 NY3d861 [2012]). Moreover, the fact that defendant was located in the general vicinity of apolice shooting, approximately eight hours after the shooting occurred, does not providethe "requisite reasonable suspicion, in the absence of 'other objective indicia ofcriminality' " that would justify pursuit (Riddick, 70 AD3d at 1423), and no suchevidence was presented at the suppression hearing. Thus, "although the police had a validbasis for the initial encounter, 'there was nothing that made permissible any greater levelof intrusion' " (id., quoting People v Howard, 50 NY2d 583, 590 [1980],cert denied 449 US 1023 [1980]).
"Inasmuch as the police officers' pursuit of defendant was unlawful, the handgunseized by the police should have been suppressed . . . , and the statementsmade by defendant to the police following the unlawful seizure also should have beensuppressed as fruit of the poisonous tree" (id. at 1424). In light of ourdetermination that the court erred in refusing to suppress the handgun obtained as a resultof the illegal pursuit and his subsequent statements to the police, defendant's guilty pleamust be vacated (see id.). Moreover, because our determination results in thesuppression of all evidence in support of the crimes charged, the indictment must bedismissed (see People vStock, 57 AD3d 1424, 1425 [2008]). We therefore remit the matter to SupremeCourt for further proceedings pursuant to CPL 470.45.
Finally, in light of our determination that reversal of the judgment in appeal No. 1 isrequired, we vacate the resentence in appeal No. 2. Present—Centra, J.P.,Peradotto, Lindley, Whalen and Martoche, JJ.