| People v Coronado |
| 2016 NY Slip Op 03601 [139 AD3d 452] |
| May 5, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Leonardo Coronado, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (Nancy E. Little ofcounsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Emily Anne Aldridge of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Barbara F. Newman, J., at suppressionhearing; Denis J. Boyle, J., at nonjury trial and sentencing), rendered October 11, 2011,convicting defendant of operating a motor vehicle while under the influence of alcohol,and sentencing him to a conditional discharge for a period of one year and a $300 fine,unanimously reversed, on the law, defendant's suppression motion granted, and theaccusatory instrument dismissed.
The court should have granted defendant's suppression motion. Two police officerstestified that they saw defendant sitting in the driver's seat of a car, while he and a manstanding outside the car but inside the driver's open door were pushing and pulling eachother. The police also heard yelling but could not understand what the men were saying.After defendant got out of the car, the two men walked together toward a nearby bar. Theofficers indicated that they suspected that the other man had been committing a crimeagainst defendant, such as robbery, and had coerced him to walk away from the car.However, there is no testimony indicating that the officers believed that defendant was aperpetrator of a crime until after one of the officers forcibly stopped him, by grabbinghim by the shoulder to stop him from moving away, and the police then observed signsthat he was intoxicated, such as bloodshot, watery eyes and an odor of alcohol on hisbreath. The officers' reasonable belief that defendant might have been a crime victim"authorized the police to ask [him] questions . . . and to follow [him] whileattempting to engage him—but not to seize him in order to do so" (People v Moore, 6 NY3d496, 500 [2006]).
The officers' testimony indicated that they did not perceive signs that defendant hadcommitted the crime of operating a motor vehicle while under the influence of alcoholuntil after defendant was seized while walking away from the officers and then turnedtoward them. Thus, the officers' observations did not provide reasonable suspicion tostop defendant, in the absence of "a particularized and objective basis for suspectingthe particular person stopped of criminal activity" (United States v Cortez,449 US 411, 417-418 [1981] [emphasis added]; see also People v De Bour, 40NY2d 210, 223 [1976]). This case is distinguishable from People v Jones (118AD2d 86 [1st Dept 1986], affd 69 NY2d 853 [1987]) and People vWoods (281 AD2d 570 [2d Dept 2001], affd 98 NY2d 627 [2002]), where,in each case, the police officers' belief that the defendant might have been a crime victiminitially justified asking questions of the defendant, and the officers stopped thedefendant only after his ensuing conduct gave rise to reasonable suspicion to believe thathe had committed or was committing a crime.
Because proof of defendant's intoxication depended on the fruits of the unlawfulstop, we dismiss the accusatory instrument (see e.g. People v Diaz, 107 AD3d401, 402 [1st Dept 2013], [*2]lv dismissed22 NY3d 996 [2013], lv dismissed 22 NY3d 1137 [2014]). In light of thisdisposition, we do not reach defendant's other arguments. Concur—Friedman,J.P., Andrias, Moskowitz, Kapnick and Webber, JJ.