| People v Severino |
| 2015 NY Slip Op 02509 [126 AD3d 1015] |
| March 25, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Pedro Severino, Appellant. |
Jorge Guttlein & Associates, P.C., New York, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, Jeanette Lifschitz, and Antara Kanth of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Kron, J.), rendered August 5, 1998, convicting him of criminal possession of acontrolled substance in the third degree (two counts) and criminal possession of acontrolled substance in the seventh degree, upon his plea of guilty, and imposingsentence. The appeal brings up for review the denial, after a hearing, of the defendant'smotion to suppress physical evidence.
Ordered that the judgment is reversed, on the law, the defendant's motion to suppressphysical evidence is granted, and the indictment is dismissed.
Contrary to the People's contentions, the arresting officer did not have reasonablesuspicion to believe that the defendant had committed or was about to commit a crime(see People v Stevenson, 7AD3d 820 [2004]; People v Harris, 149 AD2d 730 [1989]; People vLewis, 49 AD2d 558 [1975]). The officer briefly observed what he initiallycharacterized only as a "bulge" on the right side of the defendant's pants. Despite thisinitial characterization, the officer later testified that he thought he had observed aholster, which turned out to be a buckle attached to the right side of the defendant'spants. This observation, without more, was not sufficient to permit the officer to forciblydetain the defendant (see People v De Bour, 40 NY2d 210, 216 [1976];People v Stevenson, 7 AD3d at 820; People v Moore, 176 AD2d 297,299 [1991]). Accordingly, the physical evidence recovered from the defendant as aconsequence of the unlawful detention and arrest should have been suppressed, and,without that evidence, there was no basis for the defendant's convictions of criminalpossession of a controlled substance in the third and seventh degrees. Mastro, J.P.,Dickerson, Cohen and LaSalle, JJ., concur.