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

982
KA 13-01619
PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANTHONY FORD, DEFENDANT-APPELLANT.


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

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered September 6, 2013. The judgment
convicted defendant, upon his plea of guilty, of criminal possession
of a controlled substance in the third degree (two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, the plea is vacated, those parts of
the motion seeking to suppress physical evidence and statements 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 convicting him
upon his plea of guilty of two counts of criminal possession of a
controlled substance in the third degree (Penal Law § 220.16 [1],
[12]). The charges arose from the seizure by police officers of a
quantity of cocaine from defendant following the stop of the vehicle
in which he was a passenger. Defendant moved, inter alia, to suppress
the cocaine and statements he made to the police as the fruit of
illegal police conduct. The evidence at the suppression hearing
established that, after the stop, a police officer directed defendant
to exit the vehicle. When defendant asked why he was being directed
out of the vehicle, the officer physically removed him from the
vehicle, placed him face down on the ground, handcuffed him and patted
him down, which resulted in the seizure of three bags of crack cocaine
from defendant’s pants pocket and defendant’s statement that he
possessed the drugs.

     Defendant contends that Supreme Court erred in denying his motion
to suppress the cocaine. At the outset, we note that “[d]efendant
failed to preserve for our review his contention that the conduct of
the police following the stop . . . constituted a de facto arrest for
                                 -2-                           982
                                                         KA 13-01619

which the police did not have probable cause” (People v Andrews, 57
AD3d 1428, 1429, lv denied 12 NY3d 850; see People v Cash J.Y., 60
AD3d 1487, 1489, lv denied 12 NY3d 913). We see no reason to exercise
our power to review that contention as a matter of discretion in the
interest of justice (see CPL 470.15 [3] [c]), inasmuch as we find
merit in defendant’s alternative, preserved contention that the
patdown was unlawful.

     We also note that defendant does not dispute that the vehicle was
lawfully stopped based upon a police officer’s observation of a
Vehicle and Traffic Law violation (see People v Robinson, 97 NY2d 341,
349; People v Grimes, 133 AD3d 1201, 1202), or that the officers were
thereafter entitled to direct defendant to exit the vehicle “as a
precautionary measure and without particularized suspicion” (People v
Garcia, 20 NY3d 317, 321; see People v Robinson, 74 NY2d 773, 775,
cert denied 493 US 966). Defendant contends, however, that the
patdown was not justified inasmuch as the police officers lacked the
requisite reasonable basis to suspect that he was concealing a weapon
or that they were otherwise in danger (see generally People v Goodson,
85 AD3d 1569, 1570, lv denied 17 NY3d 953; People v Everett, 82 AD3d
1666, 1666). We agree.

     Based upon the evidence at the suppression hearing, we conclude
that “the officers did not have any ‘knowledge of some fact or
circumstance that support[ed] a reasonable suspicion that the
[defendant was] armed or pose[d] a threat to [their] safety’ ”
(Everett, 82 AD3d at 1666, quoting People v Batista, 88 NY2d 650,
654). Defendant’s evident nervousness as the officers approached the
vehicle was not an indication of criminality or a threat to officer
safety (see Garcia, 20 NY3d at 324; People v Hightower, 136 AD3d 1396,
1397). Nor was the patdown justified by the fact that the vehicle was
in a high crime area (see People v Carr, 103 AD3d 1194, 1195; People v
Riddick, 70 AD3d 1421, 1423, lv denied 14 NY3d 844), particularly when
the stop occurred on a busy street during rush hour (see People v
Savage, 137 AD3d 1637, 1639). Moreover, “there was no suggestion that
a weapon was present or that violence was imminent” (People v Butler,
127 AD3d 623, 624). Finally, neither defendant’s initial refusal to
exit the vehicle nor his demand for an explanation why he was being
asked to exit the vehicle gave rise to a reasonable suspicion that he
posed a threat to the officers’ safety (see People v Driscoll, 101
AD3d 1466, 1467-1468).

     Inasmuch as the patdown was unlawful, the cocaine seized by the
police and defendant’s statements should have been suppressed. We
therefore reverse the judgment, vacate the plea, grant that part of
defendant’s motion seeking suppression of physical evidence and
statements, dismiss the indictment and remit the matter to Supreme
Court for proceedings pursuant to CPL 470.45.



Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
