| People v Noah |
| 2013 NY Slip Op 04144 [107 AD3d 1411] |
| June 7, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vStephen Noah, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns,J.), rendered June 9, 2011. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a weapon in the second degree and criminal possession of acontrolled substance in the fifth degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law, the plea is vacated, the motion to suppress is granted and the matter is remittedto Supreme Court, Erie County, for further proceedings on the indictment.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of criminal possession of a weapon in the second degree (Penal Law §265.03 [3]) and criminal possession of a controlled substance in the fifth degree (§220.06 [2]). We agree with defendant that Supreme Court erred in denying hissuppression motion. Although the determination of the suppression court is entitled togreat weight (see People v Prochilo, 41 NY2d 759, 761 [1977]), we have thefact-finding authority to determine whether the police conduct was justified (seePeople v McRay, 51 NY2d 594, 605 [1980]). The evidence at the suppressionhearing established that the police were alerted to a location in Buffalo by an anonymous911 call describing a "possibly Hispanic" male in his late 20s who possessed a firearm ata bar. The caller stated that the suspect was of average height, weighed approximately300 pounds, had a shaved head, and was wearing a burnt orange jacket. The caller alsoindicated that the man had left the bar but did not indicate where he had gone. When thepolice arrived at the location of the bar, a bar patron on the patio pointed in the directionof defendant, who was standing in front of a building three doors down from the bar. Thepolice then observed defendant, a 31-year-old non-Hispanic male of average height andsignificantly lesser weight, with a full head of hair and a long dark coat. Based on theinconsistencies between the description provided by the anonymous caller anddefendant's actual appearance, as well as the ambiguous nature of the patron's pointing inthe direction of defendant, we conclude that the police at that time had "at most only thecommon-law right to inquire" (People v Benjamin, 51 NY2d 267, 270 [1980];see People v De Bour, 40 NY2d 210, 215 [1976]), and they exceeded the scopeof that permissible inquiry.
The officer who approached defendant testified at the suppression hearing that heasked [*2]defendant to step away from a group ofindividuals with whom defendant was socializing. The officer escorted defendant to thecurb while physically holding defendant's waistband, and he instructed defendant to facethe street and to place his hands on the roof of a civilian vehicle. The officer testified thatat that time defendant was not free to leave. Having detained defendant in that manner,the officer then explained to defendant the reason for the police presence. The officerasked defendant if he had any contraband and if defendant would consent to a search ofhis person. Defendant consented to the search, during which the police obtained thephysical evidence sought to be suppressed. In light of the fact that defendant wasillegally detained, i.e., without a reasonable suspicion that he was committing or hadcommitted a crime (see CPL 140.50 [1]), his consent to the search immediatelythereafter cannot be considered voluntary (see People v Packer, 49 AD3d 184, 186-188 [2008],affd 10 NY3d 915 [2008]).
Although " 'a defendant who challenges the legality of a search and seizure has theburden of proving illegality, the People are nevertheless put to the burden of goingforward to show the legality of the police conduct in the first instance' " (People v Lazcano, 66 AD3d1474, 1475 [2009], lv denied 13 NY3d 940 [2010]). We agree withdefendant that the People failed to meet that burden. The court therefore erred in refusingto suppress the physical evidence recovered from defendant's person as the result of theillegal search as well as defendant's subsequent statements to the police (see WongSun v United States, 371 US 471, 487-488 [1963]; People v Hall, 35 AD3d1171, 1172 [2006], lv denied 8 NY3d 923 [2007]). "[I]nasmuch as theerroneous suppression ruling may have affected defendant's decision to plead guilty. . . , the plea must be vacated" (People v Ayers, 85 AD3d 1583, 1585 [2011], lv denied18 NY3d 922 [2012] [internal quotation marks omitted]). Present—Scudder,P.J., Peradotto, Lindley, Valentino and Martoche, JJ.