| People v Nazario |
| 2020 NY Slip Op 00955 [180 AD3d 1355] |
| February 7, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Appellant, v Gilberto Nazario, Respondent. |
John J. Flynn, District Attorney, Buffalo (David A. Heraty of counsel), forappellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Erin A. Kulesus of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Erie County (Russell P. Buscaglia,A.J.), dated February 19, 2019. The order granted those parts of defendant's omnibusmotion seeking to suppress the physical evidence seized, the statements allegedly madeby him and the identifications of him.
It is hereby ordered that the order so appealed from is unanimously affirmed and theindictment is dismissed.
Memorandum: The People appeal from an order granting those parts of defendant'somnibus motion seeking to suppress physical evidence, statements, and identifications onthe ground that the police lacked the requisite justification for detaining defendant,searching his bag, and transporting him to the scene of the crime for a showupidentification procedure (see generally People v De Bour, 40 NY2d 210, 222-223[1976]). We affirm.
The evidence at the suppression hearing established that the officer who initiated theencounter with defendant was responding to a radio dispatch of a burglary in progress.Because other officers were already at the scene of the burglary when he arrived, theofficer canvassed the nearby area in his patrol car. Shortly thereafter, the officer noticeddefendant three blocks from the burglary scene, walking alone and carrying a bag and acell phone. The officer approached defendant, exited his vehicle, and asked defendantwhat he was doing, and defendant stated that he was looking through garbage cans. Theofficer then searched defendant's bag in order to check for weapons and informeddefendant that he was going to drive defendant back to the scene of the burglary in orderto determine whether defendant was a suspect. The officer placed defendant in the backof the patrol car and drove him to the scene of the crime, where a showup identificationwas conducted and defendant was identified as the burglar and arrested. The evidencealso established that, prior to beginning his shift on the day of the encounter, the officerreceived a "be on the lookout" (BOLO) photograph depicting defendant and reflectingthat defendant may have been involved in a prior burglary.
Contrary to the People's contention, we perceive no basis in the record for disturbingthe court's finding that the officer did not recognize defendant as the individual depictedin the BOLO until after he drove defendant to the scene of the burglary for the showupidentification (see generallyPeople v Fletcher, 130 AD3d 1063, 1064 [2d Dept 2015], affd 27 NY3d1177 [2016]; People vJemison, 158 AD3d 1310, 1310-1311 [4th Dept 2018], lv denied 31NY3d 1083 [2018]), and therefore the information in the BOLO cannot be used to justifythe officer's conduct.
We conclude that the court properly determined that the officer was not justified insearching defendant's bag or in detaining him and transporting him to the scene of theburglary. Although the officer justified the search of defendant's bag as a check forweapons, the record does not reflect that, at any time during the encounter, the officer"reasonably suspected that defendant was armed and posed a threat to [his] safety" (People v Solivan, 156 AD3d1434, 1435 [4th Dept 2017] [internal quotation marks omitted]; see generally People v Nichols,117 AD3d 881, 881-882 [2d Dept 2014]). Further, all the officer could definitivelyrecall of the initial radio dispatch reporting the burglary in progress was that it describedthe suspect as a male, although the officer also testified that the dispatch might haveidentified the suspect as Hispanic and wearing a dark hooded sweatshirt. The vaguedescription of the suspect provided by the radio dispatch, as recounted by the officer atthe suppression hearing, did not provide the officer with the requisite reasonablesuspicion to effect what was at least a forcible detention of defendant and to transporthim to take part in a showup identification (see People v Jones, 174 AD3d 1532, 1533-1534 [4th Dept2019], lv denied 34 NY3d 982 [2019]; People v Riddick, 269 AD2d 471,471 [2d Dept 2000]; seegenerally People v Balkum, 71 AD3d 1594, 1595-1596 [4th Dept 2010], lvdenied 14 NY3d 885 [2010]). Present—Peradotto, J.P., Carni, Lindley,NeMoyer and Troutman, JJ.