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

1427
KA 12-00337
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL A. CADY, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, THE WOLFORD LAW FIRM,
LLP (JAMES A. HOBBS OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered January 12, 2010. The judgment
convicted defendant, upon his plea of guilty, of criminal possession
of a weapon in the second degree (two counts) and criminal possession
of a weapon in the third 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 motion seeking to suppress tangible property and statements are
granted, the indictment is dismissed, and the matter is remitted to
Supreme Court, Monroe County, for proceedings pursuant to CPL 470.45.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of two counts of criminal
possession of a weapon in the second degree (Penal Law § 265.03 [1]
[b], [3]) and one count of criminal possession of a weapon in the
third degree (§ 265.02 [1]). In appeal No. 2, defendant appeals from
a resentence on his conviction.

     With respect to appeal No. 1, defendant contends that Supreme
Court erred in refusing to suppress the handgun that he discarded
while being pursued by the police and his subsequent statements to the
police. According to defendant, the police lacked a reasonable
suspicion to justify the pursuit. We agree.

     At the suppression hearing, the People presented evidence that,
at approximately 11:00 p.m. on January 31, 2009, police officers were
patrolling the Dayton Street area in the City of Rochester in an
attempt to locate an individual who had shot a police officer that
afternoon. Numerous officers were involved in the investigation,
which involved establishing perimeters and engaging people who might
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                                                         KA 12-00337

have information about the shooting or the suspect. Defendant was
observed by police walking in the area of Hudson Avenue and Avenue D,
which was within a block or two of where the shooting occurred. As
the People acknowledge, defendant was not a suspect in the shooting.
Two uniformed officers approached defendant and attempted to speak
with him, whereupon defendant said, “What, we can’t go to the store?”
Defendant had been walking toward a store that was open for business
at that time. Before the officers were able to answer defendant’s
question, defendant turned his back on them, made a gesture with his
arms toward his waistband, and began running. The police pursued
defendant on foot and observed him discard a handgun from his pocket
as he was being tackled by a fellow officer.

     As an initial matter, we note that defendant does not dispute
that the police had an objective credible reason to approach defendant
to request information about the shooting, thereby rendering the
police encounter lawful at its inception (see People v De Bour, 40
NY2d 210, 220). “With respect to the subsequent pursuit, it is well
settled that ‘the police may pursue a fleeing defendant if they have a
reasonable suspicion that defendant has committed or is about to
commit a crime’ ” (People v Riddick, 70 AD3d 1421, 1422, lv denied 14
NY3d 844, quoting People v Martinez, 80 NY2d 444, 446). Flight alone,
however, “ ‘is insufficient to justify pursuit because an individual
has a right “to be let alone” and refuse to respond to police
inquiry’ ” (id., quoting People v Holmes, 81 NY2d 1056, 1058).
Nevertheless, “defendant’s flight in response to an approach by the
police, combined with other specific circumstances indicating that the
suspect may be engaged in criminal activity, may give rise to
reasonable suspicion, the necessary predicate for police pursuit”
(People v Sierra, 83 NY2d 928, 929 [emphasis added]; see Riddick, 70
AD3d at 1422). “It is further well settled that actions that are ‘at
all times innocuous and readily susceptible of an innocent
interpretation . . . may not generate a founded suspicion of
criminality’ ” (Riddick, 70 AD3d at 1422).

     Here, “the fact that defendant reached for his waistband, absent
any indication of a weapon such as the visible outline of a gun or the
audible click of the magazine of a weapon, does not establish the
requisite reasonable suspicion that defendant had committed or was
about to commit a crime” (id. at 1422-1423; see Sierra, 83 NY2d at
930; cf. People v Bachiller, 93 AD3d 1196, 1197-1198, lv dismissed 19
NY3d 861). Moreover, the fact that defendant was located in the
general vicinity of a police shooting, approximately eight hours after
the shooting occurred, does not provide the “requisite reasonable
suspicion, in the absence of ‘other objective indicia of
criminality’ ” that would justify pursuit (Riddick, 70 AD3d at 1423),
and no such evidence was presented at the suppression hearing. Thus,
“although the police had a valid basis for the initial encounter,
‘there was nothing that made permissible any greater level of
intrusion’ ” (id., quoting People v Howard, 50 NY2d 583, 590, cert
denied 449 US 1023).

     “Inasmuch as the police officers’ pursuit of defendant was
unlawful, the handgun seized by the police should have been suppressed
                                 -3-                          1427
                                                         KA 12-00337

. . . , and the statements made by defendant to the police following
the unlawful seizure also should have been suppressed as fruit of the
poisonous tree” (id. at 1424). In light of our determination that the
court erred in refusing to suppress the handgun obtained as a result
of the illegal pursuit and his subsequent statements to the police,
defendant’s guilty plea must be vacated (see id.). Moreover, because
our determination results in the suppression of all evidence in
support of the crimes charged, the indictment must be dismissed (see
People v Stock, 57 AD3d 1424, 1425). We therefore remit the matter to
Supreme Court for further proceedings pursuant to CPL 470.45.

     Finally, in light of our determination that reversal of the
judgment in appeal No. 1 is required, we vacate the resentence in
appeal No. 2.




Entered:   February 1, 2013                     Frances E. Cafarell
                                                Clerk of the Court
