| People v Nichols |
| 2014 NY Slip Op 03541 [117 AD3d 881] |
| May 14, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Appellant, v Ronald Nichols, Respondent. |
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andSholom J. Twersky of counsel), for appellant.
Lynn W.L. Fahey, New York, N.Y. (A. Alexander Donn of counsel), forrespondent.
Appeal by the People from an order of the Supreme Court, Kings County (Gary, J.),dated November 30, 2012, which, after a hearing, granted that branch of the defendant'somnibus motion which was to suppress certain physical evidence, identificationevidence, and a statement made by the defendant to law enforcement officials.
Ordered that the order is affirmed.
Where a defendant moves to suppress evidence, the People bear the initial burden ofestablishing the legality of the police conduct in the first instance, while the defendantbears the ultimate burden of proving, by a preponderance of the evidence, that thechallenged evidence should not be used against him or her (see People v Berrios,28 NY2d 361, 367 [1971]; People v Cole, 85 AD3d 1198, 1198-1199 [2011]). Basedon the record before it, the Supreme Court properly suppressed the handgun seized fromthe backpack in the defendant's possession, since the People failed to meet their burdenof demonstrating the legality of the police conduct. Although the police officers properlyinitiated a common-law inquiry to obtain explanatory information from a group of sixmen, which included the defendant, based upon information from an anonymousinformant (see People v Pines, 99 NY2d 525, 526 [2002]; People vMcIntosh, 96 NY2d 521, 525 [2001]; People v Hollman, 79 NY2d 181,184-185, 191 [1992]; People v De Bour, 40 NY2d 210, 223 [1976]), reasonablesuspicion justifying an intrusive search of the backpack in the defendant's possessionnever arose (see People v McIntosh, 96 NY2d at 525; People v Benjamin,51 NY2d 267, 270 [1980]; People v De Bour, 40 NY2d at 223; Matter ofOniel W., 146 AD2d 633, 634 [1989]). Accordingly, the police search of thebackpack was improper, requiring suppression of the handgun recovered from thebackpack. Additionally, suppression of identification evidence and a statement made bythe defendant to law enforcement officials was also required, as such evidence was fruitof the poisonous tree (seePeople v Isaacs, 101 AD3d 1152 [2012]).
The People's remaining contentions are without merit. Rivera, J.P., Chambers, Austinand Duffy, JJ., concur.