| People v Ford |
| 2016 NY Slip Op 08631 [145 AD3d 1454] |
| December 23, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vAnthony Ford, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered September 6, 2013. The judgment convicted defendant, upon his plea ofguilty, of criminal possession of a controlled substance in the third degree (twocounts).
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law, the plea is vacated, those parts of the motion seeking to suppress physicalevidence and statements are granted, the indictment is dismissed, and the matter isremitted to Supreme Court, Onondaga County, for proceedings pursuant to CPL470.45.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of two counts of criminal possession of a controlled substance in the third degree(Penal Law § 220.16 [1], [12]). The charges arose from the seizure bypolice officers of a quantity of cocaine from defendant following the stop of the vehiclein which he was a passenger. Defendant moved, inter alia, to suppress the cocaine andstatements he made to the police as the fruit of illegal police conduct. The evidence at thesuppression hearing established that, after the stop, a police officer directed defendant toexit the vehicle. When defendant asked why he was being directed out of the vehicle, theofficer physically removed him from the vehicle, placed him face down on the ground,handcuffed him and patted him down, which resulted in the seizure of three bags ofcrack cocaine from defendant's pants pocket and defendant's statement that he possessedthe drugs.
Defendant contends that Supreme Court erred in denying his motion to suppress thecocaine. At the outset, we note that "[d]efendant failed to preserve for our review hiscontention that the conduct of the police following the stop . . . constituted ade facto arrest for which the police did not have probable cause" (People v Andrews, 57 AD3d1428, 1429 [2008], lv denied 12 NY3d 850 [2009]; see People v Cash J.Y., 60AD3d 1487, 1489 [2009], lv denied 12 NY3d 913 [2009]). We see no reasonto exercise our power to review that contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [3] [c]), inasmuch as we find merit in defendant'salternative, preserved contention that the pat down was unlawful.
We also note that defendant does not dispute that the vehicle was lawfully stoppedbased upon a police officer's observation of a Vehicle and Traffic Law violation (seePeople v Robinson, 97 NY2d 341, 349 [2001]; People v Grimes, 133 AD3d 1201, 1202 [2015]), or that theofficers were thereafter entitled to direct defendant to exit the vehicle "as a precautionarymeasure and without particularized suspicion" (People v Garcia, 20 NY3d 317, 321 [2012]; see Peoplev Robinson, 74 NY2d 773, 775 [1989], cert denied 493 US 966 [1989]).Defendant contends, however, that the pat down was not justified inasmuch as the policeofficers lacked the requisite reasonable basis to suspect that he was concealing a weaponor that they were otherwise in danger (see generally People v Goodson, 85 AD3d 1569, 1570[2011], lv denied 17 NY3d 953 [2011]; People v Everett, 82 AD3d 1666, 1666 [2011]). Weagree.
Based upon the evidence at the suppression hearing, we conclude that "the officersdid not have any 'knowledge of some fact or circumstance that support[ed] a reasonablesuspicion that the [defendant was] armed or pose[d] a threat to [their] safety' "(Everett, 82 AD3d at 1666, quoting People v Batista, 88 NY2d 650, 654[1996]). Defendant's evident nervousness as the officers approached the vehicle was notan indication of criminality or a threat to officer safety (see Garcia, 20 NY3d at324; People v Hightower,136 AD3d 1396, 1397 [2016]). Nor was the pat down justified by the fact that thevehicle was in a high crime area (see People v Carr, 103 AD3d 1194, 1195 [2013]; People v Riddick, 70 AD3d1421, 1423 [2010], lv denied 14 NY3d 844 [2010]), particularly when thestop occurred on a busy street during rush hour (see People v Savage, 137 AD3d 1637, 1639 [2016]).Moreover, "there was no suggestion that a weapon was present or that violence wasimminent" (People v Butler,127 AD3d 623, 624 [2015]). Finally, neither defendant's initial refusal to exit thevehicle nor his demand for an explanation why he was being asked to exit the vehiclegave rise to a reasonable suspicion that he posed a threat to the officers' safety (see People v Driscoll, 101AD3d 1466, 1467-1468 [2012]).
Inasmuch as the pat down was unlawful, the cocaine seized by the police anddefendant's statements should have been suppressed. We therefore reverse the judgment,vacate the plea, grant that part of defendant's motion seeking suppression of physicalevidence and statements, dismiss the indictment and remit the matter to Supreme Courtfor proceedings pursuant to CPL 470.45. Present—Whalen, P.J., Peradotto,NeMoyer, Curran and Troutman, JJ.