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

775
KA 12-00098
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

FLEMING W. ASHFORD, III, DEFENDANT-APPELLANT.


SHIRLEY A. GORMAN, BROCKPORT, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered October 25, 2011. The judgment
convicted defendant, upon his plea of guilty, of robbery in the first
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 obtained from defendant’s
person is granted, and the matter is remitted to Supreme Court, Monroe
County, for further proceedings on the indictments.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of robbery in the first degree (Penal Law
§ 160.15 [2]). Shortly after midnight, the police responded to a
report of an armed robbery of a taxi cab driver. Less than 10 minutes
later, the police found defendant, who matched the general description
of the suspect given by the victim, running in proximity to the crime
scene. Defendant ran away from the police, who pursued and detained
him. An officer searched defendant and seized money, a phone, and a
“do-rag” from the pockets of his jeans. A showup identification
procedure was conducted, and the victim positively identified
defendant as the perpetrator. Defendant was brought to the police
station, where he gave statements after waiving his Miranda rights.
In a courtyard near where defendant was apprehended, the police found
and seized an item of clothing, a gun, and keys belonging to the
victim.

     Defendant contends that he was unlawfully arrested prior to the
showup identification procedure and that all of the physical evidence,
as well as the identification testimony and his statements, must be
suppressed as fruit of the poisonous tree. We agree with defendant
that the items seized from his person should have been suppressed
because the police did not have probable cause at that time to arrest
                                 -2-                           775
                                                         KA 12-00098

him and conduct a search incident to an arrest. We conclude that the
police had reasonable suspicion to pursue defendant and detain him for
the purpose of the showup identification (see People v Martinez, 39
AD3d 1159, 1160, lv denied 9 NY3d 867; People v Gatling, 38 AD3d 239,
239-240, lv denied 9 NY3d 865; see generally People v Hicks, 68 NY2d
234, 239). But although the police were permitted at that time to
conduct a pat frisk of defendant (see Hicks, 68 NY2d at 238; People v
Issac, 107 AD3d 1055, 1057), they were not permitted to search him.

     We reject defendant’s contention, however, insofar as he asserts
that the remaining evidence must be suppressed as fruit of the
poisonous tree. It is well settled that “only evidence which is the
‘fruit of the poisonous tree’ should be excluded” (People v Arnau, 58
NY2d 27, 32). In other words, “only evidence which has been come at
by exploitation of that illegality should be suppressed” (id.
[internal quotation marks omitted]). Here, defendant did not meet his
burden of establishing that the showup identification of him, his
statements to the police, and the items seized in the courtyard, were
causally related to his unlawful arrest prior to the showup
identification procedure (see People v Cooley, 48 AD3d 1091, 1091, lv
denied 10 NY3d 861; see generally Arnau, 58 NY2d at 32), i.e., that
such evidence was “ ‘obtained by exploitation’ ” of the illegal arrest
(People v Holmes, 63 AD3d 1649, 1650, lv denied 12 NY3d 926; see
generally People v Rogers, 52 NY2d 527, 535, rearg denied 54 NY2d 753,
cert denied 454 US 898, reh denied 459 US 898).

     We therefore grant defendant’s omnibus motion in part by
suppressing the items seized from his person. “ ‘[I]nasmuch as the
erroneous suppression ruling may have affected defendant’s decision to
plead guilty,’ ” the plea must be vacated (People v Glanton, 72 AD3d
1536, 1538).




Entered:   September 30, 2016                   Frances E. Cafarell
                                                Clerk of the Court
