People v. Martinez-Gonzalez

188 A.D.3d 1593

134 N.Y.S.3d 599

The PEOPLE of the State of New York, Respondent,

v.Cristobal MARTINEZ-GONZALEZ, Defendant-Appellant.

569

KA 17-01095

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: November 13, 2020

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., CENTRA, NEMOYER, CURRAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

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 evidence relating to the third, fourth, fifth, sixth, and seventh counts of the indictment is granted, the third, fourth, fifth, sixth, and seventh counts of the indictment are dismissed, and the matter is remitted to Supreme Court, Onondaga County, for further proceedings in accordance with the following memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of two counts of criminal possession of a controlled substance in the fifth degree ( Penal Law § 220.06 [1] ), arising from separate incidents, defendant contends that Supreme Court erred in refusing to suppress evidence obtained following the illegal stop of the vehicle in which defendant was a passenger. We agree.

The evidence adduced at the suppression hearing established that, on the day of defendant's arrest, officers were conducting further surveillance of a residence suspected to be a location for drug sales, immediately prior to the execution of a search warrant at the residence. A detective who could see only the front area of the residence to be searched observed multiple people whom he suspected to be customers arrive at and depart from the back area of the residence through the driveway. The detective also twice saw defendant come to the front yard of the residence to smoke a cigarette then return to the back area. Defendant eventually left the residence as a passenger in a vehicle. The detective conveyed the vehicle's plate number and direction of travel to an officer in a "take down" car, who followed defendant and attempted to effect a stop of the vehicle by activating the patrol vehicle's lights. The vehicle in which defendant was a passenger slowed and defendant jumped out and fled on foot into his own residence, where he was arrested soon after and found to be in possession of cocaine and heroin. We conclude that the information available to the detaining officer did not provide reasonable suspicion to justify the vehicle stop, and thus the court erred in refusing to suppress both the tangible property seized from defendant (see People v. Stock , 57 A.D.3d 1424, 1424-1425, 871 N.Y.S.2d 545 [4th Dept. 2008] ) and the showup identification that took place after defendant's arrest (see People v. Spinks , 163 A.D.3d 1452, 1454, 79 N.Y.S.3d 455 [4th Dept. 2018] ).

Based on defendant's proximity to a suspected drug house and his otherwise innocuous behavior (see generally People v. De Bour , 40 N.Y.2d 210, 216, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ; People v. Riddick , 70 A.D.3d 1421, 1422, 894 N.Y.S.2d 260 [4th Dept. 2010], lv denied 14 N.Y.3d 844, 901 N.Y.S.2d 150, 927 N.E.2d 571 [2010] ), the officer had, at most, a "founded suspicion that criminal activity [was] afoot," which permitted him to approach defendant and make a common-law inquiry ( People v. Moore , 6 N.Y.3d 496, 498, 814 N.Y.S.2d 567, 847 N.E.2d 1141 [2006] ). The mere fact that defendant was located in an alleged high crime area "does not supply that requisite reasonable suspicion, in the absence of ‘other objective indicia of...