| People v King |
| 2021 NY Slip Op 06499 [199 AD3d 1454] |
| November 19, 2021 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Keith King, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Bridget L. Field of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Jessica N. Carbone of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (Gordon J. Cuffy, A.J.),rendered October 12, 2018. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a controlled substance in the fifth degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law,the plea is vacated, those parts of the omnibus motion seeking to suppress physical evidence andstatements are granted, the indictment is dismissed, and the matter is remitted to Supreme Court,Onondaga County, for proceedings pursuant to CPL 470.45.
Memorandum: Defendant appeals from a judgment that convicted him, upon his plea ofguilty, of criminal possession of a controlled substance in the fifth degree (Penal Law§ 220.06 [1]). We agree with defendant that Supreme Court erred in refusing tosuppress physical evidence recovered from his person after police officers approached a vehiclein which he was a passenger, as well as statements he made to police. Where, as here, "policeofficers approach a vehicle that is already parked and stationary, the only level of suspicionnecessary to justify that approach is an articulable, credible reason for doing so, not necessarilyindicative of criminality" (People vWitt, 129 AD3d 1449, 1450 [4th Dept 2015], lv denied 26 NY3d 937 [2015];see People v Ocasio, 85 NY2d 982, 985 [1995]). The approach, however, "must bepredicated on more than a hunch, whim, caprice or idle curiosity" (Ocasio, 85 NY2d at985). Here, the officer testified at the suppression hearing that he and his partner approached thevehicle because the apartment complex at which it was parked was in a high crime area andbecause the vehicle was not running and had three occupants. The hearing record is devoid,however, of evidence that the officer was "aware of or observed conduct which provided aparticularized reason to request information" from the occupants of the vehicle (People vMcIntosh, 96 NY2d 521, 527 [2001]). We therefore conclude that the officers lacked therequisite articulable, credible reason for approaching the vehicle (see id.; People v Rutledge, 21 AD3d1125, 1126 [2d Dept 2005], lv denied 6 NY3d 758 [2005]). Inasmuch as the policeaction was not justified in its inception (see People v De Bour, 40 NY2d 210, 215[1976]), the physical evidence seized from defendant, as well as defendant's subsequentstatements to the officers, must be suppressed (see People v Mobley, 120 AD3d 916, 919 [4th Dept 2014]). As aresult, defendant's guilty plea must be vacated and the indictment must be dismissed (see People v Williams, 191 AD3d1495, 1498 [4th Dept 2021]; Mobley, 120 AD3d at 919). We therefore remit thematter to Supreme Court for proceedings pursuant to CPL 470.45.
In light of our determination herein, we need not address defendant's remaining contentions.Present—Whalen, P.J., Smith, Carni, Curran and DeJoseph, JJ.