| People v Solivan |
| 2017 NY Slip Op 09021 [156 AD3d 1434] |
| December 22, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v JonathanSolivan, Appellant. |
The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Kelly Christine Wolford of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Judith A. Sinclair, J.),rendered August 16. 2016. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law,the plea is vacated, that part of the omnibus motion seeking to suppress physical evidence isgranted, the indictment is dismissed and the matter is remitted to Supreme Court, MonroeCounty, for proceedings pursuant to CPL 470.45.
Memorandum: On appeal from a judgment convicting him upon a plea of guilty of criminalpossession of a weapon in the second degree (Penal Law § 265.03 [3]), defendantcontends that Supreme Court (Piampiano, J.) erred in refusing to suppress physical evidenceseized from his person and a vehicle in which he had been located. As the People correctlyconcede, the court erred in refusing to suppress the evidence.
With respect to the marihuana seized from defendant's pocket, we agree with defendant thatthe police officer lacked any basis upon which to search defendant's person. The police officerobserved defendant sitting inside a parked vehicle lacking a valid inspection. The officerapproached the vehicle and, upon seeing a kitchen knife on the floorboard of the vehicle, askeddefendant to exit the vehicle. Without any further provocation from defendant, the officerconducted a search of defendant's person, discovering a small amount of marihuana indefendant's pocket. That search was unlawful for a variety of reasons.
First, the search cannot be justified as a frisk for officer safety inasmuch as there was noevidence that, after defendant exited the vehicle, the officer "reasonably suspected that defendantwas armed and posed a threat to [the officer's] safety" (People v Fagan, 98 AD3d 1270, 1271 [4th Dept 2012], lvdenied 20 NY3d 1061 [2013], cert denied 571 US &mdash, 134 S Ct 262 [2013];see People v Lipscomb, 179 AD2d 1043, 1044 [4th Dept 1992]; cf. People v Carter, 109 AD3d1188, 1189 [4th Dept 2013], lv denied 22 NY3d 1087 [2014]). Second, evenassuming, arguendo, that the officer was entitled to conduct a protective frisk, we conclude thathe was not entitled to search defendant's pockets. "A protective frisk is an intrusion tailored todiscover the presence of concealed weapons, usually consisting of a pat-down of a person's outerclothing. [It] 'should not be extended beyond its purpose of securing the safety of the officer andpreventing an escape' " (Lipscomb, 179 AD2d at 1044 [citations omitted],quoting People v Marsh, 20 NY2d 98, 101 [1967]). Where, as here, there is no evidencethat the officer believed that the individual's pockets contained weapons, the search of thosepockets is unlawful (see People v Diaz, 81 NY2d 106, 109 [1993]; People vWilliams, 217 AD2d 1007, 1007-1008 [4th Dept 1995]; Lipscomb, 179 AD2d at1044).
At the suppression hearing, the officer justified his search of defendant's person and [*2]pockets on the ground that he was going to be placing defendant inthe police vehicle and he searched "everybody" and "anybody" that was going to be placed insidehis vehicle. The officer's position lacks merit. "Although a police officer may reasonably patdown a person before he [or she] places [that person] in the back of a police vehicle, thelegitimacy of that procedure depends on the legitimacy of placing [the person] in the police car inthe first place" (People v Kinsella, 139 AD2d 909, 911 [4th Dept 1988]; see People v Richards, 151 AD3d1717, 1719 [4th Dept 2017]). Here, as in Richards, the People failed to establish thelegitimacy of placing defendant in the patrol vehicle. The officer lacked any suspicion, let alone areasonable one, "that a crime ha[d] been, [was] being, or [was] about to be committed"(People v Martinez, 80 NY2d 444, 447 [1992]). At most, the evidence established thatthe unidentified owner of the vehicle had committed a parking violation (Vehicle andTraffic Law § 306 [b]).
"There is no question . . . that a police officer is not authorized to conduct asearch every time he [or she] stops a motorist for speeding or some other ordinary trafficinfraction" (Marsh, 20 NY2d at 100) and, "without more[,] a mere custodial arrest for atraffic offense will not sustain a contemporaneous search of the person" (People vWeintraub, 35 NY2d 351, 353 [1974], citing People v Adams, 32 NY2d 451, 455[1973], and Marsh, 20 NY2d at 101-102; cf. People v Troiano, 35 NY2d 476, 478[1974]). If such conduct is not authorized for a traffic offense, then it cannot be authorized for thelesser offense of a parking violation.
We likewise agree with defendant that the court erred in refusing to suppress the physicalevidence found inside the uninspected vehicle inasmuch as the People failed to establish that thepurported inventory search was valid (see People v Johnson, 1 NY3d 252, 255-257 [2003]). Even if wewere to conclude that the uninspected vehicle could be impounded and subjected to an inventorysearch, a questionable proposition at best, the People failed to establish the existence of anydepartmental policy concerning inventory searches or that the officer properly conducted thesearch in compliance with established and standardized procedures (see id. at 256; see also People v Gomez, 13 NY3d6, 10-11 [2009]).
In light of our conclusion that the court should have granted those parts of defendant'somnibus motion seeking to suppress the physical evidence obtained as a result of the illegalsearch of defendant's person and the uninspected vehicle, defendant's guilty plea must be vacated(see People v Stock, 57 AD3d1424, 1425 [4th Dept 2008]). Further, because our conclusion results in the suppression ofall evidence in support of the crimes and violation charged, the indictment must be dismissed(see id.). Present—Smith, J.P., Carni, Lindley, Curran and Troutman, JJ.