| People v Hightower |
| 2016 NY Slip Op 01083 [136 AD3d 1396] |
| February 11, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDarren Hightower, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered December 19, 2012. The judgment convicted defendant, upon his plea of guilty,of criminal possession of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law, the plea is vacated, that part of the omnibus motion seeking to suppress physicalevidence is granted, the indictment is dismissed, and the matter is remitted to OnondagaCounty Court for proceedings pursuant to CPL 470.45.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofcriminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]), defendant contends that County Court erred in refusing tosuppress physical evidence obtained by the police following a stop of the vehicle inwhich defendant was a passenger. We agree. At the outset, we note that defendantcorrectly concedes that the vehicle was lawfully stopped for having excessively tintedwindows in violation of the Vehicle and Traffic Law (see People v Estrella, 48 AD3d1283, 1284 [2008], affd 10 NY3d 945 [2008], cert denied 555 US1032 [2008]). Defendant further correctly concedes that, following the stop of thevehicle, the officer was entitled to make level one inquiries concerning defendant'sidentity and destination (see People v Dewitt, 295 AD2d 937, 938 [2002], lvdenied 98 NY2d 709 [2002], reconsideration denied 98 NY2d 767 [2002];see generally People v De Bour, 40 NY2d 210, 223 [1976]), and to direct him toexit the vehicle when the driver admitted that he had no driver's license and defendantwas unable to produce identification (see People v Jones, 66 AD3d 1476, 1477 [2009], lvdenied 13 NY3d 908 [2009]).
Contrary to the determination of the suppression court, however, we conclude thatthe officer's further escalation of the encounter exceeded permissible bounds. The officertestified at the suppression hearing that, when defendant responded to his level oneinquiries, defendant appeared fidgety, grabbed at his pants pockets, looked around, andgave illogical and contradictory responses to the officer's questions, which prompted theofficer to ask defendant whether he had any weapons or drugs. With that question, theofficer "proceed[ed] to the next level of confrontation, the 'common-law inquiry,' whichinvolves 'invasive questioning' focusing on the 'possible criminality' of the subject"(People v Tejeda, 217 AD2d 932, 933 [1995], quoting People v Hollman,79 NY2d 181, 191-192 [1992]). That escalation was not supported by the requisitefounded suspicion of criminality (see generally De Bour, 40 NY2d at 223).Defendant's nervousness and the discrepancies in his explanation of where he was goingdid not give rise to a founded suspicion that criminal activity was afoot (see People v Garcia, 20 NY3d317, 320 [2012]; People vDealmeida, 124 AD3d 1405, 1407 [2015]).
Defendant responded to the officer's level two inquiry by saying, "you're harassingme," and then walking away. The encounter escalated further to a level three seizurewhen the officer commanded him to stop, defendant continued to walk away, and theofficer pursued defendant [*2]with a taser (see People v Moore, 93 AD3d519, 520-521 [2012], lv denied 19 NY3d 865 [2012]). We reject the People'scontention that defendant's conduct provided the officer with the requisite reasonablesuspicion of criminality (see generally De Bour, 40 NY2d at 223). "Flight aloneis insufficient to justify pursuit because an individual has a right to be let alone andrefuse to respond to police inquiry" (People v Riddick, 70 AD3d 1421, 1422 [2010] [internalquotation marks omitted], lv denied 14 NY3d 844 [2010]; see People vHoward, 50 NY2d 583, 590-591 [1980], cert denied 449 US 1023 [1980]).Finally, we conclude that defendant's disposal of the bags containing cocaine during theofficer's pursuit was precipitated by the illegality of that pursuit (see People v Clermont, 133AD3d 612, 614 [2015]). Thus, the court erred in refusing to suppress the bags ofcocaine.
In light of our determination that the court should have granted that part ofdefendant's omnibus motion seeking to suppress physical evidence, defendant's guiltyplea must be vacated (see Riddick, 70 AD3d at 1424). In addition, because ourdetermination results in the suppression of all evidence in support of the crimes charged,the indictment must be dismissed (see People v Cady, 103 AD3d 1155, 1157 [2013]). Wetherefore remit the matter to County Court for further proceedings pursuant to CPL470.45. Present—Whalen, P.J., Peradotto, Carni, Lindley and DeJoseph, JJ.