| People v Mueses |
| 2015 NY Slip Op 07088 [132 AD3d 1257] |
| October 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Appellant, v Marcos A. Mueses, Respondent. |
Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forappellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Erie County (M. William Boller, A.J.),dated April 17, 2014. The order granted defendant's motion to suppress physicalevidence.
It is hereby ordered that the order so appealed from is unanimously affirmed and theindictment is dismissed.
Memorandum: The People appeal from an order in which Supreme Court grantedthat part of defendant's omnibus motion seeking suppression of physical evidence on theground that the police lacked probable cause to arrest defendant for disorderly conduct(Penal Law § 240.20 [5]). We affirm.
The suppression hearing testimony established that defendant ran across a street,causing a car to stop abruptly to avoid hitting him, and that two police officers chaseddefendant with the intention of charging him with disorderly conduct. The officersobserved that defendant was running with a bulky object that he held in his shirt withboth hands. The officers lost sight of defendant for approximately two to three minutesafter he entered a yard over a locked gate, but they apprehended him on another streetwhen he exited a vacant lot. Defendant was charged with disorderly conduct, and theofficers searched the vacant lot for the bulky object and found a loaded gun wedgedunder a rock. Defendant admitted to the police that the gun was his. Defendant wasthereafter indicted for criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]) and criminal possession of a controlled substance in theseventh degree (§ 220.03). The People correctly concede that the pursuit ofdefendant by the police was unlawful inasmuch as defendant's actions did not constitutedisorderly conduct, and they do not contest on appeal the court's determinationsuppressing cocaine that was retrieved from defendant's pocket. The only issue before us,therefore, is whether the court erred in suppressing the gun. The People contend thatbecause defendant had abandoned the gun, the court should not have suppressed it. Wereject that contention.
It is well established that property seized as a result of an unlawful pursuit must besuppressed, unless that property was abandoned (see People v Howard, 50 NY2d583, 592 [1980], cert denied 449 US 1023 [1980]). "Property which has in factbeen abandoned is outside the protection of the constitutional provisions . . .There is a presumption against the waiver of constitutional rights . . . [and,thus,] [t]he proof supporting abandonment should 'reasonably beget the exclusiveinference of . . . throwing away' " (Howard, 50 NY2d at592-593). "The test to be applied is whether defendant's action . . . wasspontaneous and precipitated by the illegality or whether it was a calculated act notprovoked by the unlawful police activity and was thus attenuated from it" (People vWilkerson, 64 NY2d 749, 750 [1984]). Here, the court properly concluded thatdefendant's action was spontaneous and precipitated by the unlawful pursuit by the police(see Howard 50 NY2d at 593; People v Hooper, 245 AD2d 1020, 1021[1997], abrogated on other grounds People v Hunter, 17 NY3d 725, 727 [2011]; cf. Peoplev Boodle, 47 NY2d 398, 402 [1979], cert denied 444 US 969 [1979]; [*2]People v Johnson, 93 AD3d 1317, 1318 [2012];People v Sisnett, 217 AD2d 911, 911 [1995], lv denied 86 NY2d 846[1995]). The court thus properly determined that the People failed to establish thatdefendant had abandoned the gun and, consequently, properly suppressed the gun. Wetherefore dismiss the indictment. Present—Scudder, P.J., Peradotto, Carni,Valentino and Whalen, JJ.