| People v Grimes |
| 2020 NY Slip Op 01818 [181 AD3d 1251] |
| March 13, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Jakim Grimes, Appellant. |
Linda M. Campbell, Syracuse, for defendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Bradley W. Oastler of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered October 19, 2017. The judgment convicted defendant upon a plea ofguilty of criminal possession of a controlled substance in the third degree.
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Supreme Court, Onondaga County, for further proceedings in accordancewith the following memorandum: On appeal from a judgment convicting him upon hisplea of guilty of criminal possession of a controlled substance in the third degree (PenalLaw § 220.16 [12]), defendant contends that Supreme Court erred inrefusing to suppress physical evidence seized from his person as well as statements madeto the arresting officer. Contrary to the People's contention, the specific contentionsraised by defendant concerning the suppression ruling are preserved for our reviewinasmuch as they were raised either in the motion papers or "by specifically placing [thecontentions] for disposition before the suppression court" (People v Vasquez, 66NY2d 968, 970 [1985], cert denied 475 US 1109 [1986]; cf. People vClaudio, 64 NY2d 858, 858-859 [1985]). In any event, the issues raised on appealwere "brought to the attention of the [suppression] court at a time and in a way that gavethe latter the opportunity to remedy the problem and thereby avert reversible error"(People v Luperon, 85 NY2d 71, 78 [1995]). Furthermore, we agree withdefendant that the court erred in issuing its suppression ruling without resolving, in thefirst instance, whether the pat frisk of defendant was lawful.
On the day of defendant's arrest, a police officer observed defendant's vehicle stop ata suspected drug house. An occupant of the vehicle entered the house only to exitmoments later and reenter the vehicle, which was then driven away. Based on thoseobservations, the observing officer suspected that a drug transaction had just taken place.The officer therefore instructed a fellow officer (arresting officer) to follow the vehicle to"try to get a reason to stop it."
The arresting officer, while following defendant's vehicle, observed the drivercommit two traffic infractions. The arresting officer thus engaged his emergency lightsand stopped the vehicle. Upon approaching the vehicle on foot, the arresting officer"noticed in the driver['s] side mirror that the driver was aggressively moving around inthe seat." It appeared to the arresting officer that the driver "was reaching behind him,"causing the arresting officer to fear that the driver, later identified as defendant, wasreaching for a weapon. Although defendant admitted to the arresting officer that he didnot possess a valid license, he produced a nondriver identification card. After orderingdefendant to exit the vehicle, the arresting officer conducted a pat frisk during which hefelt a hard object in defendant's pants that the arresting officer believed to be narcotics.The arresting officer placed handcuffs on defendant and advised him of hisMiranda rights. After defendant waived such rights, the arresting officer askedhim in sum and substance what was in his pants. In response, defendant said that he hadseven grams of crack cocaine. Defendant was then arrested and transported to the policestation, where, at the arresting officer's request, defendant removed the cocaine from hisunderwear.
Following a hearing, the court denied that part of defendant's omnibus motionseeking to suppress the cocaine and his statements to the arresting officer. Althoughdefendant contended that the pat frisk was unlawful, the court declined to resolve thatissue, reasoning that the arresting officer had a founded suspicion of criminal activitybefore the frisk was conducted, thus authorizing the arresting officer to ask defendantwhether he had anything on him. We conclude that the court erred in failing to determinewhether the frisk was lawful and, if not, whether an exception to the exclusionary ruleapplied.
It is well settled that courts, in evaluating police conduct, are required to determine ifthe action was justified at each and every stage of the encounter (see People v Brown, 148AD3d 1562, 1563 [4th Dept 2017], lv denied 29 NY3d 1124 [2017]). Here,if the pat frisk was unlawful, then defendant's subsequent statements and the evidenceseized as a result of those statements would have to be suppressed as fruit of thepoisonous tree unless an exception to the exclusionary rule applies (see e.g. People v Mobley, 120AD3d 916, 919 [4th Dept 2014]; People v Randall, 85 AD2d 754, 754-755[3d Dept 1981]; see generally People v Fitzpatrick, 32 NY2d 499, 505-506[1973], cert denied 414 US 1033, 1050 [1973]). Inasmuch as this Court lacks the"power to review issues . . . not ruled upon . . . by the trialcourt" (People v LaFontaine, 92 NY2d 470, 474 [1998], rearg denied 93NY2d 849 [1999]; see CPL 470.15 [1]; People v Concepcion, 17 NY3d 192, 195 [2011]), we holdthe case, reserve decision, and remit the matter to Supreme Court for a determinationwhether the arresting officer possessed the requisite justification to conduct the frisk ofdefendant (see People vGreen, 173 AD3d 1690, 1692 [4th Dept 2019]) and, if not, whether anexception to the exclusionary rule applies.
In light of our determination, we do not address defendant's remaining contention.Present—Carni, J.P., Lindley, Curran, Winslow and Bannister,JJ.