| People v Soler |
| 2020 NY Slip Op 07404 [189 AD3d 1086] |
| December 9, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Wagner Soler, Appellant. |
Paul Skip Laisure, New York, NY (Alice R. B. Cullina of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Gamaliel Marrero ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (MiriamCyrulnik, J.), rendered July 6, 2017, convicting him of attempted criminal possession of afirearm, upon his plea of guilty, and imposing sentence. The appeal from the judgment brings upfor review the denial, after a hearing (Michael Gary, J.), of that branch of the defendant'somnibus motion which was to suppress physical evidence.
Ordered that the judgment is reversed, on the law, that branch of the defendant's omnibusmotion which was to suppress physical evidence is granted, the indictment is dismissed, and thematter is remitted to the Supreme Court, Kings County, for the purpose of entering an order in itsdiscretion pursuant to CPL 160.50.
At a suppression hearing, police officers testified that on April 16, 2015, at approximately12:30 p.m., they were conducting a street narcotics enforcement unit operation. One of theofficers was stationed at an observation post in the third floor hallway of an apartment building,across the street from a deli. He observed the defendant standing near a vehicle that was parkednear the deli. The officer testified that there was "something heavy on one of the sides" of thedefendant's sweatshirt pocket, which caused the pocket to "sag[ ]," and that he believed the objectwas a gun. The officer radioed this information to a second officer who was stationed in anunmarked vehicle parked near the deli.
The defendant ultimately entered the vehicle and drove away, followed by the second officerin the unmarked vehicle. When the defendant stopped his vehicle, the second officer stoppedbehind the defendant's vehicle. Both the defendant and the second officer exited their respectivevehicles at the same time, and faced each other. The second officer testified that the defendanthad his hands "[a]t his side," and that he saw a heavy, L-shaped object in the defendant's frontsweatshirt pocket, which he believed to be a gun. The second officer approached the defendantand said something along the lines of "what's this or what is that," and "reached" for the item inthe defendant's sweatshirt pocket, but before the officer made contact with the pocket, thedefendant fled the scene, and discarded a gun in the course of his flight.
The Supreme Court found that the officer was permitted to touch the L-shaped bulge in thedefendant's sweatshirt pocket as a "self-protective minimal intrusion within the scope of acommon-law inquiry," and denied that branch of the defendant's omnibus motion which was to[*2]suppress physical evidence. Thereafter, the defendant pleadedguilty to attempted criminal possession of a firearm in full satisfaction of the indictment. Thedefendant appeals.
The defendant's purported waiver of his right to appeal was invalid (see People v Thomas, 34 NY3d545 [2019]). When explaining the waiver of the right to appeal, the Supreme Court stated,inter alia, that as a result of the waiver, the defendant was "giving up [his] independent right toappeal [his] case to a higher court," and that the case "ends here" upon sentencing. Thesestatements incorrectly suggested that the waiver may be an absolute bar to the taking of an appeal(see People v Thomas, 34 NY3d545, 564 [2019]; People vChristopher B., 184 AD3d 657, 659 [2020]; People v Wilson, 183 AD3d 922 [2020]). The written waiver of theright to appeal, which stated that the sentence and conviction would be final, did not correct thedefect.
On the merits, that branch of the defendant's omnibus motion which was to suppress physicalevidence should have been granted. The officer was justified in conducting a common-lawinquiry, and the officer was permitted to ask the defendant if he was carrying a weapon (see People v Garcia, 20 NY3d 317,324 [2012]; People v Casey, 149AD3d 770, 770 [2017]; People vHarris, 122 AD3d 942, 944 [2014]; People v Guarino, 267 AD2d 324, 325[1999]). However, the officer was not justified in attempting to touch the defendant's sweatshirtpocket as a minimally intrusive self-protective measure, since the defendant did not engage inany conduct justifying such an intrusion (see People v Harris, 122 AD3d at 944; People v Butler, 127 AD3d 623,624 [2015]). The defendant's response of fleeing and discarding the gun was not "an independentact involving a calculated risk attenuated from the underlying [illegal] police conduct" (People v Smalls, 83 AD3d 1103,1104 [2011]).
Accordingly, we reverse the judgment, grant that branch of the defendant's omnibus motionwhich was to suppress physical evidence, dismiss the indictment, and remit the matter to theSupreme Court, Kings County, for the purpose of entering an order in its discretion pursuant toCPL 160.50. Rivera, J.P., Hinds-Radix, Duffy and Brathwaite Nelson, JJ., concur.