| People v Sykes |
| 2013 NY Slip Op 06448 [110 AD3d 1437] |
| October 4, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v WillieSykes, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller,A.J.), rendered September 16, 2011. The judgment convicted defendant, upon his plea ofguilty, of criminal possession of a weapon in the second degree, criminal possession of aweapon in the third degree, unlawful possession of marihuana, failure to display headlamps and improper license plates.
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Supreme Court, Erie County, for further proceedings in accordance with thefollowing memorandum: Defendant appeals from a judgment convicting him upon hisplea of guilty of criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]), criminal possession of a weapon in the third degree (§ 265.02[1]), unlawful possession of marihuana (§ 221.05), failure to display head lamps(Vehicle and Traffic Law § 375 [2] [a] [1]), and improper license plates (§402 [1]). We agree with defendant that Supreme Court erred in refusing to suppress thegun recovered from the vehicle based upon the inevitable discovery doctrine. Thetestimony at the suppression hearing established that, during a lawful traffic stop, one ofthe police officers asked defendant whether there were any drugs or weapons in thevehicle before instructing defendant to exit the vehicle. After defendant admitted tohaving marihuana on his person, the police officer asked defendant to exit the vehicleand, following suspicious behavior by another occupant of the vehicle, searched thevehicle and found a gun in plain view. Notably, the court did not address whether theofficer had the requisite founded suspicion of criminal activity to justify an inquiryconcerning the presence of drugs or weapons in the vehicle (see generally People v Garcia,20 NY3d 317, 322-323 [2012]; People v De Bour, 40 NY2d 210, 223[1976]). Instead, the court refused to suppress the gun on the ground that the police"could" have taken various actions after the traffic stop that would have inevitably led tothe discovery of the gun. The People, however, did not raise the inevitable discoverydoctrine as a ground for denying suppression of the gun, nor did they meet their burdenof "demonstrat[ing] a very high degree of probability that normal police procedureswould have uncovered the challenged evidence independently of [a] tainted source"(People v Turriago, 90 NY2d 77, 86 [1997], rearg denied 90 NY2d 936[1997] [internal quotation marks omitted]; see People v Fitzpatrick, 32 NY2d499, 507 [1973], cert denied 414 US 1033, 1050 [1973]; People vWalker, 198 AD2d 785, 787 [1993]; cf. People v Watson, 188 AD2d 501,502 [1992]).[*2]
Further, even if a founded suspicion of criminalactivity supported the police officer's inquiry (see Garcia, 20 NY3d at 322-323),we are precluded from affirming with respect to the court's refusal to suppress the gun"on a theory not reached by the suppression court" (People v Ingram, 18 NY3d 948, 949 [2012]; see People v Concepcion, 17NY3d 192, 195 [2011]; People v LaFontaine, 92 NY2d 470, 473-474[1998], rearg denied 94 NY2d 849 [1999]). We therefore hold the case, reservedecision and remit the matter to Supreme Court to determine whether the police officerhad a founded suspicion of criminal activity to justify his inquiry (see generally People v Coles,105 AD3d 1360, 1363 [2013]). Present—Scudder, P.J., Peradotto, Carni,Valentino and Whalen, JJ.