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

680
KA 09-00087
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SEAN M. AYERS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (KELLY CHRISTINE
WOLFORD OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Alex R. Renzi,
J.), rendered November 19, 2008. The judgment convicted defendant,
upon his plea of guilty, of criminal possession of a weapon in the
second degree.

     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 is granted, and the matter
is remitted to Monroe County Court for further proceedings on the
indictment.

     Memorandum: On appeal 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]), defendant contends that his arrest was not
supported by probable cause. We agree. At approximately 3:19 A.M. on
a winter day, the police responded to the report of an attempted
burglary by a homeowner who had discovered the door of his back porch
ajar and one fresh snow footprint inside the house. The homeowner
also reported that his wife’s vehicle had been opened. One to two
inches of snow had fallen early that morning. The first officer to
respond began following a footprint trail in the fresh snow, leading
away from the house. The officer reported the direction of the
footprint trail to two other officers who were in patrol vehicles,
canvassing the neighborhood for a suspect. Approximately one hour
after the attempted burglary occurred, one of the officers in a patrol
vehicle observed defendant running across the street and up the
driveway of a house in proximity to the location of the attempted
burglary. The officer got out of his vehicle and instructed defendant
to stop. The officer then approached defendant and placed him under
arrest, and defendant was immediately handcuffed. When defendant
asked the officer why he had been arrested, the officer responded,
“for breaking into cars.” Defendant was pat-searched, and a stolen
                                 -2-                           680
                                                         KA 09-00087

credit card was found in one of his pockets. In addition, a rifle was
found during an inventory search of defendant’s vehicle, which was
located on the same street as the house at which the attempted
burglary took place.

     Later that morning at the jail, defendant waived his Miranda
rights and gave a written statement to the police, apologizing for his
crime. Subsequently, while in jail on the present charges, defendant
made telephone calls to his girlfriend, which were monitored by the
police. The police used the information from those telephone
conversations to obtain evidence that defendant possessed weapons.
Defendant was indicted on 12 counts, three of which included criminal
possession of a weapon.

     It is undisputed that defendant was arrested immediately upon his
encounter with the police. The arresting officer so acknowledged, and
we conclude based on the record before us that a reasonable person in
defendant’s position would have believed that, under all of the
circumstances, he or she was under arrest (see People v Yukl, 25 NY2d
585, 589, cert denied 400 US 851). The police, however, lacked
probable cause to arrest defendant (see People v Russell, 269 AD2d
771). The officer who arrested defendant had observed him running on
the same street where the reported attempted burglary occurred,
sometime between 3:30 A.M. and 4:30 A.M. Although those facts tied
defendant to the crime that was being investigated, they justified, at
most, a stop based on reasonable suspicion, not an arrest requiring
probable cause (see People v De Bour, 40 NY2d 210, 222-223).
Furthermore, “the police cannot rely on evidence obtained after an
arrest to provide probable cause” (People v Young, 202 AD2d 1024,
1026; see People v Williams, 191 AD2d 989, lv denied 82 NY2d 729).

     We further conclude that the police obtained additional evidence
against defendant that flowed directly from defendant’s illegal
arrest, and it cannot be said that such evidence was “sufficiently
attenuated from the illegal arrest to be purged of the taint created
by the illegality” (Russell, 269 AD2d at 772). Thus, the court erred
in refusing to suppress the evidence obtained as a result of
defendant’s illegal arrest as fruit of the poisonous tree (see
generally People v Christianson, 57 AD3d 1385, 1388; People v Parris,
136 AD2d 882, 883-884, appeal dismissed 71 NY2d 1031). “ ‘[I]nasmuch
as the erroneous suppression ruling may have affected defendant’s
decision to plead guilty’ ” (People v Glanton, 72 AD3d 1536, 1537-
1538), the plea must be vacated.




Entered:   June 10, 2011                        Patricia L. Morgan
                                                Clerk of the Court
