| People v Graham |
| 2015 NY Slip Op 09442 [134 AD3d 1047] |
| December 23, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Terrence Graham, Appellant. |
Lynn W. L. Fahey, New York, NY (Tammy Linn of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove andThomas M. Ross of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Carroll, J.), rendered February 21, 2013, convicting him of criminal possession of aweapon in the second degree and criminal possession of a controlled substance in thefifth degree, upon a jury verdict, and imposing sentence. The appeal brings up for reviewthe denial, after a hearing (Balter, J.), of that branch of the defendant's omnibus motionwhich was to suppress physical evidence.
Ordered that the judgment is reversed, on the law, the branch of the defendant'somnibus motion which was to suppress physical evidence is granted, the indictment isdismissed, and the matter is remitted to the Supreme Court, Kings County, for furtherproceedings consistent with CPL 160.50.
The Supreme Court should have granted that branch of the defendant's omnibusmotion which was to suppress the physical evidence recovered by the police during theirencounter with the defendant. The search of the defendant's right jacket pocket, fromwhich the police recovered a gun, cannot be upheld as justifiably premised on probablecause, since the defendant had not been placed under arrest prior to the search (see People v Julien, 100 AD3d925, 927 [2012]). "[A]n officer who reasonably suspects that a detainee is armedmay conduct a frisk or take other protective measures even in the absence of probablecause to arrest" (People vShuler, 98 AD3d 695, 696 [2012]; see CPL 140.50 [3]; Terry vOhio, 392 US 1, 29-30 [1968]; People v Brooks, 65 NY2d 1021, 1023[1985]; People v Davis, 64 NY2d 1143, 1144 [1985]; People v De Bour,40 NY2d 210, 223 [1976]). However, "[a] police officer acting on reasonable suspicionthat criminal activity is afoot and on an articulable basis to fear for his own safety mayintrude upon the person or personal effects of the suspect only to the extent that isactually necessary to protect himself from harm while he conducts the inquiry"(People v Torres, 74 NY2d 224, 226 [1989]; see People v Setzer, 199AD2d 548, 549 [1993]). "The key question in all cases remains whether the protectivemeasures taken by the officer were reasonable under the circumstances" (People vFinlayson, 76 AD2d 670, 679 [1980]).
Here, the police officer searched the defendant's jacket pocket without any priorvisual observations of a weapon and without first conducting a pat down of the outsideof the pocket. Thus, even assuming that the officer acted on reasonable suspicion thatcriminal activity was afoot and an articulable basis to fear for his safety, he failed toconfine the scope of his search to an intrusion reasonably necessary to protect himselffrom harm. Accordingly, the weapon recovered [*2]as aresult of the unlawful search should have been suppressed. In addition, the drugs andother items thereafter recovered must also be suppressed as fruits of the initial, unlawfulsearch (see People v Gethers, 86 NY2d 159, 161-162 [1995]). Without thatevidence there could not be sufficient evidence to prove the defendant's guilt and,therefore, the indictment should be dismissed (see People v Miranda-Hernandez, 106 AD3d 838, 839[2013]).
In light of our determination, we need not reach the defendant's remainingcontentions. Dillon, J.P., Sgroi, Cohen and LaSalle, JJ., concur.