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

1026
KA 11-01476
PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LARON ROBINSON, DEFENDANT-APPELLANT.


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

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


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered May 23, 2011. The judgment convicted defendant,
upon his plea of guilty, of attempted criminal possession of a weapon
in the third degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Onondaga County Court for
further proceedings in accordance with the following Memorandum:
Defendant appeals from a judgment that convicted him upon a guilty
plea of attempted criminal possession of a weapon in the third degree
(Penal Law §§ 110.00, 265.02 [5] [ii]). Defendant contends that
County Court erred in refusing to suppress the evidence seized as the
result of the allegedly unlawful stop of the vehicle that he was
driving. We conclude that the court applied the wrong standard in
denying defendant’s suppression motion. We therefore hold the case,
reserve decision, and remit the matter to County Court to determine
the motion in accordance with the correct legal standard.

     At the suppression hearing, the People presented evidence that,
while the police were engaged in surveillance of targeted residences,
a lieutenant involved in the operation observed an individual, later
identified as defendant, driving slowly down the street toward one of
the subject residences. Although the lieutenant observed defendant
exit the vehicle and walk toward another individual who had exited the
subject residence, he did not see them interact or engage in any hand-
to-hand transactions. He also failed to see any drugs or weapons.
When defendant returned to the vehicle, he appeared to hand something
to the passenger in the front seat and appeared to drink from a beer
can, but the lieutenant was unsure. The lieutenant ordered a fellow
detective to stop defendant’s vehicle, which he did, and the detective
observed an open beer can in the vehicle. Defendant engaged in
furtive actions when questioned by the detective and was subjected to
                                 -2-                          1026
                                                         KA 11-01476

a pat frisk, whereupon cocaine was found on his person. Defendant
attempted to flee, but was apprehended and arrested. From outside the
vehicle, the lieutenant then observed the handle of a handgun
protruding from underneath the driver’s seat, which the detective who
stopped the vehicle recovered upon a subsequent search of the vehicle.

     In denying defendant’s suppression motion, the court concluded
that the traffic stop was lawful based upon “a founded suspicion that
criminal activity [was] afoot” (People v De Bour, 40 NY2d 210, 223).
That was error. It is well established that “ ‘police stops of
automobiles in this State are legal only pursuant to routine,
nonpretextual traffic checks to enforce traffic regulations or when
there exists at least a reasonable suspicion that the driver or
occupants of the vehicle have committed, are committing, or are about
to commit a crime’ ” (People v Washburn, 309 AD2d 1270, 1271, quoting
People v Spencer, 84 NY2d 749, 753, cert denied 516 US 905), or “where
the police have ‘probable cause to believe that the driver . . . has
committed a traffic violation’ ” (id., quoting People v Robinson, 97
NY2d 341, 349). Here, the People do not contend that this was a
routine check to enforce traffic regulations, and instead rely on
defendant’s commission of a traffic infraction under Vehicle and
Traffic Law § 1227 (1), prohibiting the consumption or possession of
an open container containing an alcoholic beverage in a motor vehicle
on a public highway, to justify the stop of defendant’s vehicle.
Here, the court did not apply the correct standard in denying
defendant’s suppression motion, i.e., it did not determine whether the
police had probable cause to believe that defendant had committed a
traffic infraction (see Robinson, 97 NY2d at 349; People v East, 119
AD3d 1370, 1371; see generally People v Concepcion, 17 NY3d 192, 195).
Inasmuch as “[w]e have no power to ‘review issues either decided in
appellant’s favor, or not ruled upon, by the trial court’ ” (People v
Coles, 105 AD3d 1360, 1363, quoting Concepcion, 17 NY3d at 195), we
hold the case, reserve decision, and remit the matter to County Court
to rule on that issue.




Entered:   November 14, 2014                    Frances E. Cafarell
                                                Clerk of the Court
