| People v Elliott |
| 2016 NY Slip Op 04838 [140 AD3d 1752] |
| June 17, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Elfin Elliott, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (James J. Piampiano, J.),rendered September 5, 2013. The judgment convicted defendant, upon his plea of guilty,of criminal possession of a weapon in the second degree and criminal possession of acontrolled substance in the seventh degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law, the plea is vacated, those parts of the omnibus motion seeking to suppresstangible property and statements are granted, the indictment is dismissed, and the matteris remitted to Monroe County Court for proceedings pursuant to CPL 470.45.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty,of 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), defendant contends that County Court erred indenying those parts of his omnibus motion seeking to suppress physical evidence,including a handgun, and statements he made to the police following his arrest. Weagree.
The evidence at the suppression hearing showed that, on the day before defendant'sarrest, two police officers recovered marihuana from a field near 17 Maria Street in theCity of Rochester. The officers returned to that area the next day along with a policesergeant, and they observed a group of five or six men, who dispersed upon theirapproach. The sergeant saw defendant "quickly grab near his waistband area" and enterthe front passenger seat of a nearby sport utility vehicle, where the sergeant sawdefendant bend over, "as if [defendant] was putting something underneath the seat." Thesergeant left his patrol car and approached defendant with his service weapon drawn,demanding to see defendant's hands. The sergeant asked defendant what he had putunder his seat, and defendant responded that he had placed a quantity of marihuana underthe seat. Defendant was ordered out of the car and arrested after the sergeant foundmarihuana under the front passenger seat. Upon a subsequent pat-down search ofdefendant's person, a loaded handgun was recovered from his waistband.
The People concede that the sergeant's encounter with defendant constituted a levelthree forcible detention under People v De Bour (40 NY2d 210, 223 [1976]), andthus required "a reasonable suspicion that [defendant] was involved in a felony ormisdemeanor" (People vMoore, 6 NY3d 496, 499 [2006]). "[A]ctions that are at all times innocuous andreadily susceptible of an innocent interpretation . . . may not generate afounded suspicion of criminality" (People v Riddick, 70 AD3d 1421, 1422 [2010], lvdenied 14 NY3d 844 [2010] [internal quotation marks omitted]; see People v Mobley, 120AD3d 916, 918 [2014]).
We agree with defendant that the arresting sergeant lacked the requisite reasonablesuspicion. There is no evidence in the record that the sergeant was informed of therecovery of [*2]marihuana in the area the day beforedefendant's arrest, and defendant's actions in merely "grabbing" at his waistline andbending down to the floor of the vehicle, without more, were insufficient to provide thesergeant with the requisite suspicion that defendant committed a crime, and to justifydefendant's gunpoint detention (see Mobley, 120 AD3d at 918; People v Cady, 103 AD3d1155, 1156 [2013]; Riddick, 70 AD3d at 1422-1423; People vGuzman, 153 AD2d 320, 323 [1990]). Inasmuch as the forcible detention ofdefendant was unlawful, the handgun and other physical evidence seized by the police,and the statements made by defendant to the police following the unlawful seizure,should have been suppressed. As a result, defendant's guilty plea must be vacated and theindictment dismissed, and we remit the matter to County Court for proceedings pursuantto CPL 470.45 (see Mobley, 120 AD3d at 918-919). Present—Centra, J.P.,Peradotto, Lindley, DeJoseph and NeMoyer, JJ.