| People v Mobley |
| 2014 NY Slip Op 05715 [120 AD3d 916] |
| August 8, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRodney T. Mobley, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of counsel),for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D.Valentino, J.), rendered January 12, 2010. The judgment convicted defendant, upon hisplea of guilty, of 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, those parts of the motion seeking to suppress tangibleproperty and statements are granted, the indictment is dismissed, and the matter isremitted to Supreme Court, Monroe County, for proceedings pursuant to CPL470.45.
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]). We agree with defendant that Supreme Court erred indenying his motion to suppress tangible property, i.e., a handgun, and his subsequent oralstatements to the police because the police lacked reasonable suspicion to justify a searchof his person.
On September 5, 2008, City of Rochester (City) police officers and New York StateTroopers were patrolling allegedly high crime areas of the City. At approximately 7:30p.m., a city police officer (the observing officer) was in an unmarked vehicle parked atthe corner of North and Helena Streets. He observed defendant approximately 30 to 35feet away, standing with a group of five or six men at the corner of North and GraceStreets, and he saw defendant use his right hand to "cup" a weighted object in his rightpants pocket as he readjusted his clothing. The observing officer radioed another officerin a marked New York State police vehicle (the uniformed officer) that "a kid" on thecorner "had made movements towards his right side," and requested that the uniformedofficer "step out with" defendant. When the marked police vehicle approached defendanton North Street, defendant quickly turned away and walked down Grace Street. Theobserving officer then drove the unmarked vehicle past defendant, and the observingofficer's partner exited the vehicle, identified himself as a police officer and ordereddefendant to stop and "show his hands." At that point, the marked vehicle approached onGrace Street and the uniformed officer observed an object in defendant's left hand. Afterthe uniformed officer exited the marked vehicle, he observed defendant place the objectinto his left rear pants pocket. The uniformed officer seized defendant's hands, patted hisleft rear pants pocket, felt a hard object, reached into that pocket and removed a cellphone. He then patted defendant's right front pocket and felt the outline of a gun.
A police officer may stop a person to search for weapons where the officer"reasonably suspects that such person is committing, has committed or is about tocommit" a crime (CPL 140.50 [1]), and the officer "reasonably suspects that he [or she]is in danger of physical injury" (CPL 140.50 [3]). "A stop based on reasonable suspicionwill be upheld so long as the intruding officer can point to 'specific and articulable factswhich, along with any logical deductions, reasonably prompted th[e] intrusion' "(People v Brannon, 16NY3d 596, 602 [2011]). In contrast, however, "actions that are 'at all timesinnocuous and readily susceptible of an innocent interpretation . . . may notgenerate a founded suspicion of criminality' " (People v Riddick, 70 AD3d1421, 1422 [2010], lv denied 14 NY3d 844 [2010]; see People v DeBour, 40 NY2d 210, 216 [1976]). If the intruding officer lacks personal knowledgesufficient to establish reasonable suspicion, information that the intruding officerreceived "as a result of communication with" a fellow officer is presumed reliable(People v Ketcham, 93 NY2d 416, 419 [1999] [internal quotation marksomitted]; see People v Ramirez-Portoreal, 88 NY2d 99, 113 [1996]).Nevertheless, a radio call from a fellow officer that defendant had made movementstowards his right side "absent any indication of a weapon such as the visible outline of agun or the audible click of the magazine of a weapon, does not establish the requisitereasonable suspicion that defendant had committed or was about to commit a crime" (People v Ingram, 114 AD3d1290, 1293 [2014] [internal quotation marks omitted]; see People v Cady, 103 AD3d1155, 1156 [2013]; Riddick, 70 AD3d at 1422-1423). "The mere fact thatdefendant was located in an alleged high crime area does not supply that requisitereasonable suspicion, in the absence of 'other objective indicia of criminality' "(Riddick, 70 AD3d at 1423; see People v Powell, 246 AD2d 366, 369[1998], appeal dismissed 92 NY2d 886 [1998]). Moreover, flight from anapproaching police vehicle does not provide the requisite reasonable suspicion absent"specific circumstances indicating that the suspect may be engaged in criminal activity"(People v Sierra, 83 NY2d 928, 929 [1994]; see Riddick, 70 AD3d at1422).
In addition, we note that there was no evidence that the officer "reasonablysuspect[ed] that he [was] in danger of physical injury" (CPL 140.50 [3]; seePowell, 246 AD2d at 369-370). We conclude that defendant's act of emptying thecontents of his left hand, i.e., a cell phone, into his pocket in responding to a policecommand to "show his hands" was an innocuous act (see Powell, 246 AD2d at369). The intruding officer—here, the uniformed officer—did not observe,nor was he aware of, any threatening gestures or weapons (see id.; cf. People v Sims, 106 AD3d1473, 1474 [2013], appeal dismissed 22 NY3d 992 [2013]). Because theofficer lacked reasonable suspicion that defendant was committing a crime and had noreasonable basis to suspect that he was in danger of physical injury, we further concludethat the ensuing pat frisk of defendant was unlawful (see CPL 140.50 [1], [3];Riddick, 70 AD3d at 1424; Powell, 246 AD2d at 369-370).
Inasmuch as the pat frisk was unlawful, "the handgun seized by the police shouldhave been suppressed . . . , and the statements made by defendant to thepolice following the unlawful seizure also should have been suppressed as fruit of thepoisonous tree" (Riddick, 70 AD3d at 1424). As a result, defendant's guilty pleamust be vacated and, because our determination results in the suppression of all evidenceof the charged crime, the indictment must be dismissed (see id.; People v Stock, 57 AD3d1424, 1425 [2008]). We therefore remit the matter to Supreme Court forproceedings pursuant to CPL 470.45. Present—Smith, J.P., Peradotto, Lindley,Sconiers and Whalen, JJ.