| People v Carr |
| 2013 NY Slip Op 00809 [103 AD3d 1194] |
| February 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ToddE. Carr, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Erin Tubbs of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Stephen R. Sirkin, A.J.),rendered August 20, 2008. The judgment convicted defendant, upon his plea of guilty, ofattempted criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law, the plea is vacated, that part of the omnibus motion seeking to suppress evidenceis granted, the indictment is dismissed, and the matter is remitted to Monroe CountyCourt for proceedings pursuant to CPL 470.45.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty,of attempted criminal possession of a weapon in the second degree (Penal Law§§ 110.00, 265.03 [3]), defendant contends that County Court erred inrefusing to suppress the physical evidence obtained from his vehicle because it wasseized as the result of an illegal search. We agree.
At the suppression hearing, the arresting police officer testified on direct examinationthat, on October 10, 2007 at approximately 4:00 a.m., he approached defendant's vehiclebecause the vehicle was illegally parked. The officer asked defendant, "what's going on?"and observed that defendant appeared to be very nervous. After the officer inquired as towhy defendant was so nervous, defendant replied that he was seeking a prostitute. Theofficer described the area where the encounter occurred as an "open air drug market"characterized by a high incidence of prostitution and noted that, in his experience,persons seeking prostitutes were often found to possess illegal drugs. The officerthereafter sought and obtained defendant's permission to search the vehicle and, duringthe ensuing search, discovered a handgun underneath the passenger seat. Oncross-examination, the officer acknowledged that, before he sought defendant'spermission to search the vehicle, he asked defendant if there was "anything in the car that[the officer] should be aware of." The officer could not recall whether he posed thatquestion before or after defendant made the admission concerning the prostitute.
We analyze defendant's contentions pursuant to the four-tiered framework forcitizen-police encounters set forth in People v De Bour (40 NY2d 210, 223[1976]; see People vGarcia, 20 NY3d 317, 322 [2012]; People v Hollman, 79 NY2d 181,184-185 [1992]). At its inception, the encounter [*2]wasa request for information, and defendant does not dispute that "[t]he police had anobjective, credible reason for approaching [his] car . . . inasmuch as the carwas illegally parked" (People v Valerio, 274 AD2d 950, 951 [2000], affd95 NY2d 924 [2000], cert denied 532 US 981[2001]). Nevertheless, oncethe officer asked if there was anything in the vehicle he "should be aware of," theencounter became a common-law inquiry under De Bour, requiring a "foundedsuspicion that criminal activity is afoot" (De Bour, 40 NY2d at 223; seegenerally Garcia, 20 NY3d at 323 n; People v Ponder, 43 AD3d 1398, 1399 [2007], lvdenied 10 NY3d 770 [2008]). We conclude that the People failed to meet theirburden of establishing the legality of the police conduct, i.e., that the officer possessedthe requisite founded suspicion to make such an inquiry (see generally People vRiddick, 70 AD3d 1421, 1423 [2010], lv denied 14 NY3d 844 [2010]).Although defendant ultimately admitted that he was seeking a prostitute, as noted theofficer could not recall whether defendant made that admission before or after the officerinquired regarding the contents of the vehicle. Absent defendant's admission, theevidence demonstrated only that defendant appeared nervous and that the encounter tookplace in a "high-crime" area. Such factors alone are insufficient to elevate the encounterto a common-law inquiry (see generally Garcia, 20 NY3d at 324; People vBanks, 85 NY2d 558, 562 [1995], cert denied 516 US 868 [1995];People v Boulware, 130 AD2d 370, 374 [1997], appeal dismissed 70NY2d 994 [1988]).
Inasmuch as defendant's consent to the search was obtained immediately after theimproper inquiry concerning the contents of the vehicle, we cannot conclude thatdefendant's consent was acquired by means "sufficiently distinguishable from the taint"of the illegal inquiry (Banks, 85 NY2d at 563; see generally Hollman, 79NY2d at 194). As a result, the evidence seized during the search of the vehicle must besuppressed. Present—Scudder, P.J., Centra, Carni, Lindley and Sconiers, JJ.