         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
3
KA 08-02222
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TODD E. CARR, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ERIN TUBBS OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Stephen R.
Sirkin, A.J.), rendered August 20, 2008. The judgment convicted
defendant, upon his plea of guilty, of attempted 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, the indictment
is dismissed, and the matter is remitted to Monroe County Court for
proceedings pursuant to CPL 470.45.

     Memorandum: On appeal from a judgment convicting him, upon his
plea of guilty, of attempted criminal possession of a weapon in the
second degree (Penal Law §§ 110.00, 265.03 [3]), defendant contends
that County Court erred in refusing to suppress the physical evidence
obtained from his vehicle because it was seized as the result of an
illegal search. We agree.

     At the suppression hearing, the arresting police officer
testified on direct examination that, on October 10, 2007 at
approximately 4:00 a.m., he approached defendant’s vehicle because the
vehicle was illegally parked. The officer asked defendant, “what’s
going on?” and observed that defendant appeared to be very nervous.
After the officer inquired as to why defendant was so nervous,
defendant replied that he was seeking a prostitute. The officer
described the area where the encounter occurred as an “open air drug
market” characterized by a high incidence of prostitution and noted
that, in his experience, persons seeking prostitutes were often found
to possess illegal drugs. The officer thereafter sought and obtained
defendant’s permission to search the vehicle and, during the ensuing
search, discovered a handgun underneath the passenger seat. On cross-
examination, the officer acknowledged that, before he sought
                                 -2-                             3
                                                         KA 08-02222

defendant’s permission to search the vehicle, he asked defendant if
there was “anything in the car that [the officer] should be aware of.”
The officer could not recall whether he posed that question before or
after defendant made the admission concerning the prostitute.

     We analyze defendant’s contentions pursuant to the four-tiered
framework for citizen-police encounters set forth in People v De Bour
(40 NY2d 210, 223; see People v Garcia, 20 NY3d 317, ___; People v
Hollman, 79 NY2d 181, 184-185). At its inception, the encounter was a
request for information, and defendant does not dispute that “[t]he
police had an objective, credible reason for approaching [his] car . .
. inasmuch as the car was illegally parked” (People v Valerio, 274
AD2d 950, 951, affd 95 NY2d 924, cert denied 532 US 981).
Nevertheless, once the officer asked if there was anything in the
vehicle he “should be aware of,” the encounter became a common-law
inquiry under De Bour, requiring a “founded suspicion that criminal
activity is afoot” (De Bour, 40 NY2d at 223; see generally Garcia, 20
NY3d at ___ n 1; People v Ponder, 43 AD3d 1398, 1399, lv denied 10
NY3d 770). We conclude that the People failed to meet their burden of
establishing the legality of the police conduct, i.e., that the
officer possessed the requisite founded suspicion to make such an
inquiry (see generally People v Riddick, 70 AD3d 1421, 1423, lv denied
14 NY3d 844). Although defendant ultimately admitted that he was
seeking a prostitute, as noted the officer could not recall whether
defendant made that admission before or after the officer inquired
regarding the contents of the vehicle. Absent defendant’s admission,
the evidence demonstrated only that defendant appeared nervous and
that the encounter took place in a “high-crime” area. Such factors
alone are insufficient to elevate the encounter to a common-law
inquiry (see generally Garcia, 20 NY3d at ___; People v Banks, 85 NY2d
558, 562, cert denied 516 US 868; People v Boulware, 130 AD2d 370,
374, appeal dismissed 70 NY2d 994).

     Inasmuch as defendant’s consent to the search was obtained
immediately after the improper inquiry concerning the contents of the
vehicle, we cannot conclude that defendant’s consent was acquired by
means “sufficiently distinguishable from the taint” of the illegal
inquiry (Banks, 85 NY2d at 563; see generally Hollman, 79 NY2d at
194). As a result, the evidence seized during the search of the
vehicle must be suppressed.




Entered:   February 8, 2013                     Frances E. Cafarell
                                                Clerk of the Court
