         SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department

414
KA 12-01879
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, VALENTINO, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

STEPHEN NOAH, DEFENDANT-APPELLANT.


LIPSITZ GREEN SCIME CAMBRIA, LLP, BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered June 9, 2011. The judgment
convicted defendant, upon his plea of guilty, of criminal possession of
a weapon in the second degree and criminal 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, the motion to
suppress is granted and the matter is remitted to Supreme Court, Erie
County, for further proceedings on the indictment.

     Memorandum: Defendant appeals from a judgment convicting him upon
his plea of guilty of criminal possession of a weapon in the second
degree (Penal Law § 265.03 [3]) and criminal possession of a controlled
substance in the fifth degree (§ 220.06 [2]). We agree with defendant
that Supreme Court erred in denying his suppression motion. Although
the determination of the suppression court is entitled to great weight
(see People v Prochilo, 41 NY2d 759, 761), we have the fact-finding
authority to determine whether the police conduct was justified (see
People v McRay, 51 NY2d 594, 605). The evidence at the suppression
hearing established that the police were alerted to a location in
Buffalo by an anonymous 911 call describing a “possibly Hispanic” male
in his late 20s who possessed a firearm at a bar. The caller stated
that the suspect was of average height, weighed approximately 300
pounds, had a shaved head, and was wearing a burnt orange jacket. The
caller also indicated that the man had left the bar but did not indicate
where he had gone. When the police arrived at the location of the bar,
a bar patron on the patio pointed in the direction of defendant, who was
standing in front of a building three doors down from the bar. The
police then observed defendant, a 31-year-old non-Hispanic male of
average height and significantly lesser weight, with a full head of hair
and a long dark coat. Based on the inconsistencies between the
                                 -2-                           414
                                                         KA 12-01879

description provided by the anonymous caller and defendant’s actual
appearance, as well as the ambiguous nature of the patron’s pointing in
the direction of defendant, we conclude that the police at that time had
“at most only the common-law right to inquire” (People v Benjamin, 51
NY2d 267, 270; see People v De Bour, 40 NY2d 210, 215), and they
exceeded the scope of that permissible inquiry.

     The officer who approached defendant testified at the suppression
hearing that he asked defendant to step away from a group of individuals
with whom defendant was socializing. The officer escorted defendant to
the curb while physically holding defendant’s waistband, and he
instructed defendant to face the street and to place his hands on the
roof of a civilian vehicle. The officer testified that at that time
defendant was not free to leave. Having detained defendant in that
manner, the officer then explained to defendant the reason for the
police presence. The officer asked defendant if he had any contraband
and if defendant would consent to a search of his person. Defendant
consented to the search, during which the police obtained the physical
evidence sought to be suppressed. In light of the fact that defendant
was illegally detained, i.e., without a reasonable suspicion that he was
committing or had committed a crime (see CPL 140.50 [1]), his consent to
the search immediately thereafter cannot be considered voluntary (see
People v Packer, 49 AD3d 184, 186-188, affd 10 NY3d 915).

     Although “ ‘a defendant who challenges the legality of a search and
seizure has the burden of proving illegality, the People are
nevertheless put to the burden of going forward to show the legality of
the police conduct in the first instance’ ” (People v Lazcano, 66 AD3d
1474, 1475, lv denied 13 NY3d 940). We agree with defendant that the
People failed to meet that burden. The court therefore erred in
refusing to suppress the physical evidence recovered from defendant’s
person as the result of the illegal search as well as defendant’s
subsequent statements to the police (see Wong Sun v United States, 371
US 471, 487-488; People v Hall, 35 AD3d 1171, 1172, lv denied 8 NY3d
923). “[I]nasmuch as the erroneous suppression ruling may have affected
defendant’s decision to plead guilty . . . , the plea must be vacated”
(People v Ayers, 85 AD3d 1583, 1585, lv denied 18 NY3d 922 [internal
quotation marks omitted]).




Entered:   June 7, 2013                         Frances E. Cafarell
                                                Clerk of the Court
