| People v Roberts |
| 2018 NY Slip Op 00725 [158 AD3d 1141] |
| February 2, 2018<> |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v MarvinRoberts, Appellant. |
Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C., Washington, D.C. (Thomas G.Schultz of counsel) and Timothy P. Donaher, Public Defender, Rochester, fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Douglas A. Randall, J.), renderedDecember 1, 2015. The judgment convicted defendant, upon his plea of guilty, of criminalpossession 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 tangible evidence isgranted, the indictment is dismissed, and the matter is remitted to Monroe County Court forproceedings pursuant to CPL 470.45.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminalpossession of a weapon in the second degree (Penal Law § 265.03 [3]), defendantcontends that County Court erred in denying that part of his omnibus motion seeking to suppresstangible evidence, including a handgun, that a police officer seized from him. We agree.
The evidence from the suppression hearing establishes that, at approximately 4:20 a.m., aRochester police officer heard a radio broadcast stating that a person had been taken to a hospitalby private vehicle for treatment of a gunshot wound. Approximately 15 minutes later, the officerheard a further broadcast stating that the shooting had occurred at a bar on Lake Avenue inRochester, and that the suspect was a male Hispanic, approximately five feet, ten inches tall witha medium build. The broadcast did not indicate when the shooting had occurred, or whether itwas inside or outside the bar. Along with other police officers, the officer responded to the bar'slocation within two minutes, where he saw five people standing in a parking lot near a vehicle.The officer testified that one member of the group "appeared to be a male Hispanic, two weremale blacks, one was a female white and the other was male white." The officer searched theparking lot and found blood spots and a bullet fragment located between 10 and 25 feet from thegroup, but the People introduced no evidence indicating how long those items may have beenthere.
Another officer, who did not testify at the hearing, approached the five people and questionedthem. The testifying officer stated that he only heard the other officer ask the group about theshooting, and one, unidentified member of the group replied that "they didn't see anything, theydidn't hear anything, that nothing like that happened out here." Nevertheless, the testifying officerdecided to frisk all members of the group. He testified that he began the process with defendant,a male black, because he was standing closest to him. Defendant turned away from the officer,who seized defendant's hands, patted defendant's waist, and discovered a weapon.
We agree with defendant that, based on the evidence at the suppression hearing, the courterred in refusing to suppress the weapon. As an initial matter, we conclude that the police had anobjective, credible reason to approach the group of five people in the parking lot and to requestinformation in light of the report of a shooting at or near that location at some unidentified earliertime. Thus, we conclude that the police encounter was lawful at its inception (see People vHollman, 79 NY2d 181, 185 [1992]; People v De Bour, 40 NY2d 210, 220 [1976]).The People correctly concede, however, that the officer's encounter with defendant constituted alevel three forcible detention under the four-tiered De Bour framework (40 NY2d at 223;see generally People v Bora, 83 NY2d 531, 535 [1994]), and thus required "a reasonablesuspicion that [defendant] was involved in a felony or misdemeanor" (People v Moore, 6 NY3d 496, 499[2006]).
We conclude that, "[b]ecause of the lack of correspondence between defendant's appearanceand the description of the suspected [shooter that was] transmitted to the officer[ ]. . . , the officer[ ] had no basis for concluding that the reported crime had beencommitted by defendant" (People v Ross, 251 AD2d 1020, 1021 [4th Dept 1998], lvdenied 92 NY2d 882 [1998]; cf.People v Wilson, 144 AD3d 1500, 1500 [4th Dept 2016], lv denied 28 NY3d1151 [2017]; People v Waters, 259 AD2d 642, 643-644 [2d Dept 1999]). "Nor can the[frisk of defendant] and seizure of the gun be justified as having been in the interests of theofficer['s] safety, since there was no testimony that the officer[ ] believed defendant to becarrying a weapon" (People vThompson, 127 AD3d 658, 662 [1st Dept 2015]), and the People presented no otherevidence establishing that the officer had reason to fear for his safety (cf. People v Fletcher, 130 AD3d1063, 1065 [2d Dept 2015], affd 27 NY3d 1177 [2016]). Consequently, we concludethat the People failed to establish that the officer had "a reasonable suspicion that [defendant]was involved in a felony or misdemeanor" (Moore, 6 NY3d at 499). Because the forcibledetention and frisk of defendant was unlawful, the handgun and other tangible evidence seized bythe police should have been suppressed. We therefore vacate the plea, dismiss the indictment,and remit the matter to County Court for proceedings pursuant to CPL 470.45 (see People v Elliott, 140 AD3d1752, 1753 [4th Dept 2016]). Present—Smith, J.P., Centra, Carni, Curran andTroutman, JJ.