| People v Blanding |
| 2014 NY Slip Op 02508 [116 AD3d 498] |
| April 10, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Troy Blanding, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (David E.A. Crowley of counsel),for respondent.
Appeal from judgment, Supreme Court, New York County (Charles J. Tejada, J., atsuppression hearing; Roger S. Hayes, J., at jury trial and sentencing), rendered June 23,2006, convicting defendant of criminal sale of a controlled substance in the third degree,and sentencing him, as a second felony drug offender, to a term of four years,unanimously reversed, on the law, the motion to suppress granted, and the matterremitted to Supreme Court for further proceedings, as appropriate.
During a buy and bust operation, a ghost undercover detective issued a radiotransmission identifying defendant as a participant in a drug sale, made to anotherundercover officer. Based on that radio transmission describing defendant and hislocation, a third officer approached defendant on the sidewalk, identified himself, andasked defendant to put his hands up. When defendant acted "a little resistant," the officerattempted to handcuff him. Defendant then resisted, and the police forcibly handcuffedhim.
Defendant moved to suppress on the grounds that his arrest was not based onprobable cause. The suppression court denied the motion, ruling that although when theofficer stopped the defendant, he did not have probable cause to arrest him based on theinformation that he had received from the radio transmission, the officer obtainedprobable cause to arrest defendant after the purchasing undercover officer subsequentlyradioed his confirmatory identification. By denying the suppression motion while findingthat there was no probable cause to arrest defendant until the confirmatory identification,the court implicitly found that the initial apprehension, which preceded thatidentification, was a proper temporary detention based on reasonable suspicion and thatthe application of handcuffs on defendant did not transform the detention into a full-scalearrest.
At the outset, we reject the People's argument that defendant was not under arrest atthe point when he was handcuffed. Although the use of handcuffs is not dispositive ofwhether an investigatory detention on reasonable suspicion has been elevated to anarrest, handcuffing is permissible in such a detention only when justified by thecircumstances (see People v Acevedo, [*2]179AD2d 465, 465-466 [1st Dept 1992], lv denied 79 NY2d 996 [1992]). In thiscase, the police had no reason to believe that defendant was either armed or dangerous.Nor was there any indication on the record that defendant offered any resistance prior tothe handcuffing, or gave the police any reason to believe that he might flee.
We do not reach the merits of the People's argument, made to the hearing court, butrejected by it, that the arresting detective already had probable cause to arrest defendantwhen he was stopped and before the confirmatory identification. Even assuming thePeople were correct, we have no "power to review issues . . . decided in anappellant's favor . . . by the trial court" (People v Concepcion, 17 NY3d 192, 195 [2011]).Concur—Friedman, J.P., Andrias, Richter, Manzanet-Daniels and Feinman, JJ.
The decision and order of this Court entered herein on November 19, 2013 (111AD3d 533 [2013]) is hereby recalled and vacated (see 2014 NY Slip Op69325[U] [2014] [decided simultaneously herewith]).