| People v Robinson |
| 2014 NY Slip Op 07803 [122 AD3d 1282] |
| November 14, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vLaron Robinson, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered May 23, 2011. The judgment convicted defendant, upon his plea of guilty, ofattempted criminal possession of a weapon in the third degree.
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Onondaga County Court for further proceedings in accordance with thefollowing memorandum: Defendant appeals from a judgment that convicted him upon aguilty plea of attempted criminal possession of a weapon in the third degree (Penal Law§§ 110.00, 265.02 [5] [ii]). Defendant contends that County Courterred in refusing to suppress the evidence seized as the result of the allegedly unlawfulstop of the vehicle that he was driving. We conclude that the court applied the wrongstandard in denying defendant's suppression motion. We therefore hold the case, reservedecision, and remit the matter to County Court to determine the motion in accordancewith the correct legal standard.
At the suppression hearing, the People presented evidence that, while the police wereengaged in surveillance of targeted residences, a lieutenant involved in the operationobserved an individual, later identified as defendant, driving slowly down the streettoward one of the subject residences. Although the lieutenant observed defendant exit thevehicle and walk toward another individual who had exited the subject residence, he didnot see them interact or engage in any hand-to-hand transactions. He also failed to seeany drugs or weapons. When defendant returned to the vehicle, he appeared to handsomething to the passenger in the front seat and appeared to drink from a beer can, butthe lieutenant was unsure. The lieutenant ordered a fellow detective to stop defendant'svehicle, which he did, and the detective observed an open beer can in the vehicle.Defendant engaged in furtive actions when questioned by the detective and wassubjected to a pat frisk, whereupon cocaine was found on his person. Defendantattempted to flee, but was apprehended and arrested. From outside the vehicle, thelieutenant then observed the handle of a handgun protruding from underneath the driver'sseat, which the detective who stopped the vehicle recovered upon a subsequent search ofthe vehicle.
In denying defendant's suppression motion, the court concluded that the traffic stopwas lawful based upon "a founded suspicion that criminal activity [was] afoot"(People v De Bour, 40 NY2d 210, 223 [1976]). That was error. It is wellestablished that " 'police stops of automobiles in this State are legal only pursuantto routine, nonpretextual traffic checks to enforce traffic regulations or when there existsat least a reasonable suspicion that the driver or occupants of the vehicle have committed,are committing, or are about to commit a crime' " (People v Washburn,309 AD2d 1270, 1271 [2003], quoting People v Spencer, 84 NY2d 749, 753[1995], cert denied 516 US 905 [1995]), or "where the police have 'probablecause to believe that the driver . . . has committed a trafficviolation' " (id., quoting People v Robinson, 97 NY2d 341, 349[2001]). Here, the People do not contend that this was a routine check to enforce trafficregulations, and instead rely on defendant's commission of a traffic infraction underVehicle and Traffic Law § 1227 (1), prohibiting the consumption orpossession of an open container containing an alcoholic beverage in a motor vehicle on apublic highway, to justify the stop of defendant's vehicle. Here, the court did not applythe correct standard in denying defendant's suppression motion, i.e., it did not determinewhether the police had probable cause to believe that defendant had committed a trafficinfraction (see Robinson, 97 NY2d at 349; People v East, 119 AD3d 1370, 1371 [2014]; see generally People vConcepcion, 17 NY3d 192, 195 [2011]). Inasmuch as "[w]e have no power to'review issues either decided in appellant's favor, or not ruled upon, by the trialcourt' " (People vColes, 105 AD3d 1360, 1363 [2013], quoting Concepcion, 17 NY3d at195), we hold the case, reserve decision, and remit the matter to County Court to rule onthat issue. Present—Smith, J.P., Peradotto, Valentino, Whalen and DeJoseph,JJ.