| People v Lopez |
| 2017 NY Slip Op 03327 [149 AD3d 1545] |
| April 28, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Pablo W.Lopez, Appellant. |
Easton Thompson Kasperek Shiffrin LLP, Rochester (Brian Shiffrin of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joanne M. Winslow, J.),rendered February 25, 2014. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a weapon in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law,that part of defendant's motion seeking to suppress tangible evidence is granted, the indictment isdismissed, and the matter is remitted to Supreme Court, Monroe County, for proceedingspursuant to CPL 470.45.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of two countsof criminal possession of a weapon in the second degree, defendant contends that Supreme Courterred in denying his motion to suppress two semi-automatic pistols recovered by Rochesterpolice officers following the stop and subsequent chase of defendant's vehicle. We agree.
The evidence at the suppression hearing established that police officers responded to twocalls, approximately an hour apart, concerning an address on North Goodman Street. The firstcall was for "family trouble," and the second was for "shots fired." The complainant provided adetailed description of the suspect in both incidents, her children's father, which was broadcast bythe police dispatcher following the second incident. The suspect was described as an Hispanicmale, five foot seven, with tattoos on his neck and arms, dark clothing, including a Yankeesbaseball cap, and crossed, "Asian-type" eyes. Approximately half an hour after the second call,an officer spotted an Hispanic man with tattoos on his neck and arms walking on NorthGoodman Street. Although there were several police cars at the scene, the man "had. . . a straight ahead stare, would not look towards [the officer], would not look atany of the police cars sitting on the street, just walked ahead and looked straight ahead." After theman passed him, the officer observed him get into the rear seat of a vehicle, which proceeded inthe officer's direction. The officer stopped the vehicle and, when he looked inside, he saw that"the front seat passenger was a male Hispanic with tattoos on his neck, and he also had Asianstyle eyes which were also crossed." The front seat passenger, who turned out to be the suspectinvolved in the two incidents, also had a handgun in his waistband. The officer drew his serviceweapon and instructed defendant, the driver, to turn the car off. Defendant did not comply, butinstead drove away with several police cars in pursuit. After a short chase, defendant stopped hisvehicle and the occupants were arrested. The rear seat passenger was wearing a white T-shirt andpajama pants. Officers thereafter recovered two pistols on the route taken by defendant. Thecourt denied defendant's motion to suppress the handguns, concluding that the officer wasjustified in stopping defendant's vehicle.
"Although the determination of the suppression court is entitled to great weight (seePeople v Prochilo, 41 NY2d 759, 761 [1977]), we have the fact-finding authority todetermine [*2]whether the police conduct was justified (seePeople v McRay, 51 NY2d 594, 605 [1980])" (People v Noah, 107 AD3d 1411, 1412 [2013]), and we concludethat the weapons should have been suppressed as the fruit of an illegal stop. The necessarypredicate for the stop of defendant's vehicle was "at least a reasonable suspicion that the driver oroccupants of the vehicle have committed, are committing, or are about to commit a crime"(People v Spencer, 84 NY2d 749, 753 [1995], cert denied 516 US 905 [1995];see People v Brooks, 266 AD2d 864, 864 [1999]). Here, the stop was premised upon theofficer's belief that the man who got into the rear seat of defendant's vehicle was the suspect inthe two incidents on North Goodman Street. The man the officer observed walking past himmatched the most general part of the complainant's description, i.e., an Hispanic male, and healso had tattoos on his neck and arms. The officer could not tell, however, whether the man hadthe most distinctive feature in that description, i.e., crossed, "Asian style" eyes (cf. People v Rodriguez, 144 AD3d498, 498 [2016], lv denied 28 NY3d 1188 [2017]; People v Cash J.Y., 60 AD3d1487, 1488-1489 [2009], lv denied 12 NY3d 913 [2009]; People v Johnson,207 AD2d 806, 807 [1994], lv denied 84 NY2d 1033 [1995]). Moreover, the clothingworn by the man did not in any way match the description of the suspect's clothing provided bythe complainant, and the discrepancies cannot be characterized as slight (cf. People v Brujan, 104 AD3d481, 481 [2013], lv denied 21 NY3d 1014 [2013]; Matter of Dominique W., 84 AD3d657, 658 [2011]; People v Smalls, 292 AD2d 213, 214 [2002], lv denied 98NY2d 681 [2002]). Rather, the inconsistencies between the suspect's clothing as described by thecomplainant and the clothing worn by the man who walked past the officer on North GoodmanStreet rendered the officer's suspicion that the man was the suspect less than reasonable (see People v Thompson, 127 AD3d658, 661 [2015]; Noah, 107 AD3d at 1412; People v Polhill, 102 AD3d 988, 989 [2013]; People v Beckett, 88 AD3d 898,900 [2011]). Contrary to the People's contention, moreover, we conclude that the man's conductin staring straight ahead as he walked among the police cars was "innocuous and readilysusceptible of an innocent interpretation" and, as such, did not generate a reasonable suspicion ofcriminality (People v Powell, 246 AD2d 366, 369 [1998], appeal dismissed 92NY2d 886 [1998]).
Given that the stop of defendant's vehicle was not supported by a reasonable suspicion ofcriminality, the officer's observation of the actual suspect in the front seat with a weapon in hiswaistband was "the unattenuated by-product of the [illegal] stop" (People v Smith, 1 AD3d 965, 966[2003]) and, inasmuch as the disposal of the weapons during the ensuing chase was precipitatedby that illegality, the weapons should have been suppressed (see People v Carmichael, 92 AD3d 687, 688 [2012], lvdismissed 19 NY3d 958 [2012]; People v McFadden, 136 AD2d 934, 935 [1988]). Inaddition, because our determination results in the suppression of all evidence supporting thecrimes charged, the indictment must be dismissed (see People v Freeman, 144 AD3d 1650, 1651 [2016]).
We therefore reverse the judgment and grant defendant's motion insofar as it soughtsuppression of tangible evidence, dismiss the indictment, and remit the matter to Supreme Courtfor proceedings pursuant to CPL 470.45. In light of our decision, we do not address defendant'sremaining contentions. Present—Whalen, P.J., Smith, Centra, Troutman and Scudder,JJ.