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

515
KA 13-01689
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ELFIN ELLIOTT, DEFENDANT-APPELLANT.


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

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (James J.
Piampiano, J.), rendered September 5, 2013. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree and criminal possession of a controlled substance
in the seventh 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 omnibus motion seeking to suppress tangible property and
statements are 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 criminal possession of a weapon in the second
degree (Penal Law § 265.03 [3]) and criminal possession of a
controlled substance in the seventh degree (§ 220.03), defendant
contends that County Court erred in denying those parts of his omnibus
motion seeking to suppress physical evidence, including a handgun, and
statements he made to the police following his arrest. We agree.

     The evidence at the suppression hearing showed that, on the day
before defendant’s arrest, two police officers recovered marihuana
from a field near 17 Maria Street in the City of Rochester. The
officers returned to that area the next day along with a police
sergeant, and they observed a group of five or six men, who dispersed
upon their approach. The sergeant saw defendant “quickly grab near
his waistband area” and enter the front passenger seat of a nearby
sport utility vehicle, where the sergeant saw defendant bend over, “as
if [defendant] was putting something underneath the seat.” The
sergeant left his patrol car and approached defendant with his service
weapon drawn, demanding to see defendant’s hands. The sergeant asked
                                 -2-                           515
                                                         KA 13-01689

defendant what he had put under his seat, and defendant responded that
he had placed a quantity of marihuana under the seat. Defendant was
ordered out of the car and arrested after the sergeant found marihuana
under the front passenger seat. Upon a subsequent pat-down search of
defendant’s person, a loaded handgun was recovered from his waistband.

     The People concede that the sergeant’s encounter with defendant
constituted a level three forcible detention under People v De Bour
(40 NY2d 210, 223), and thus required “a reasonable suspicion that
[defendant] was involved in a felony or misdemeanor” (People v Moore,
6 NY3d 496, 499). “[A]ctions that are at all times innocuous and
readily susceptible of an innocent interpretation . . . may not
generate a founded suspicion of criminality” (People v Riddick, 70
AD3d 1421, 1422, lv denied 14 NY3d 844 [internal quotation marks
omitted]; see People v Mobley, 120 AD3d 916, 918).

     We agree with defendant that the arresting sergeant lacked the
requisite reasonable suspicion. There is no evidence in the record
that the sergeant was informed of the recovery of marihuana in the
area the day before defendant’s arrest, and defendant’s actions in
merely “grabbing” at his waistline and bending down to the floor of
the vehicle, without more, were insufficient to provide the sergeant
with the requisite suspicion that defendant committed a crime, and to
justify defendant’s gunpoint detention (see Mobley, 120 AD3d at 918;
People v Cady, 103 AD3d 1155, 1156; Riddick, 70 AD3d at 1422-1423;
People v Guzman, 153 AD2d 320, 323). Inasmuch as the forcible
detention of defendant was unlawful, the handgun and other physical
evidence seized by the police, and the statements made by defendant to
the police following the unlawful seizure, should have been
suppressed. As a result, defendant’s guilty plea must be vacated and
the indictment dismissed, and we remit the matter to County Court for
proceedings pursuant to CPL 470.45 (see Mobley, 120 AD3d at 918-919).




Entered:   June 17, 2016                        Frances E. Cafarell
                                                Clerk of the Court
