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

444
KA 14-01562
PRESENT: WHALEN, P.J., SMITH, CENTRA, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

PABLO W. LOPEZ, DEFENDANT-APPELLANT.


EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joanne M. Winslow, J.), rendered February 25, 2014. The judgment
convicted defendant, upon a jury verdict, of criminal possession of a
weapon in the second degree (two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, that part of defendant’s motion
seeking to suppress tangible evidence is granted, the indictment is
dismissed, and the matter is remitted to Supreme Court, Monroe County,
for proceedings pursuant to CPL 470.45.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of two counts of criminal possession of a weapon in the second
degree, defendant contends that Supreme Court erred in denying his
motion to suppress two semi-automatic pistols recovered by Rochester
police officers following the stop and subsequent chase of defendant’s
vehicle. We agree.

     The evidence at the suppression hearing established that police
officers responded to two calls, approximately an hour apart,
concerning an address on North Goodman Street. The first call was for
“family trouble,” and the second was for “shots fired.” The
complainant provided a detailed description of the suspect in both
incidents, her children’s father, which was broadcast by the police
dispatcher following the second incident. The suspect was described
as an Hispanic male, five foot seven, with tattoos on his neck and
arms, dark clothing, including a Yankees baseball cap, and crossed,
“Asian-type” eyes. Approximately half an hour after the second call,
an officer spotted an Hispanic man with tattoos on his neck and arms
walking on North Goodman Street. Although there were several police
cars at the scene, the man “had . . . a straight ahead stare, would
not look towards [the officer], would not look at any of the police
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                                                         KA 14-01562

cars sitting on the street, just walked ahead and looked straight
ahead.” After the man passed him, the officer observed him get into
the rear seat of a vehicle, which proceeded in the officer’s
direction. The officer stopped the vehicle and, when he looked
inside, he saw that “the front seat passenger was a male Hispanic with
tattoos on his neck, and he also had Asian style eyes which were also
crossed.” The front seat passenger, who turned out to be the suspect
involved in the two incidents, also had a handgun in his waistband.
The officer drew his service weapon and instructed defendant, the
driver, to turn the car off. Defendant did not comply, but instead
drove away with several police cars in pursuit. After a short chase,
defendant stopped his vehicle and the occupants were arrested. The
rear seat passenger was wearing a white T-shirt and pajama pants.
Officers thereafter recovered two pistols on the route taken by
defendant. The court denied defendant’s motion to suppress the
handguns, concluding that the officer was justified in stopping
defendant’s vehicle.

     “Although the determination of the suppression court is entitled
to great weight (see People v Prochilo, 41 NY2d 759, 761 [1977]), we
have the fact-finding authority to determine whether the police
conduct was justified (see People v McRay, 51 NY2d 594, 605 [1980])”
(People v Noah, 107 AD3d 1411, 1412), and we conclude that the weapons
should have been suppressed as the fruit of an illegal stop. The
necessary predicate for the stop of defendant’s vehicle was “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 Spencer, 84 NY2d 749, 753, cert denied 516 US 905; see
People v Brooks, 266 AD2d 864, 864). Here, the stop was premised upon
the officer’s belief that the man who got into the rear seat of
defendant’s vehicle was the suspect in the two incidents on North
Goodman Street. The man the officer observed walking past him matched
the most general part of the complainant’s description, i.e., an
Hispanic male, and he also had tattoos on his neck and arms. The
officer could not tell, however, whether the man had the most
distinctive feature in that description, i.e., crossed, “Asian style”
eyes (cf. People v Rodriquez, 144 AD3d 498, 498, lv denied 28 NY3d
1188; People v Cash J.Y., 60 AD3d 1487, 1488-1489, lv denied 12 NY3d
913; People v Johnson, 207 AD2d 806, 807, lv denied 84 NY2d 1033).
Moreover, the clothing worn by the man did not in any way match the
description of the suspect’s clothing provided by the complainant, and
the discrepancies cannot be characterized as slight (cf. People v
Brujan, 104 AD3d 481, 481, lv denied 21 NY3d 1014; Matter of Dominique
W., 84 AD3d 657, 658; People v Smalls, 292 AD2d 213, 214, lv denied 98
NY2d 681). Rather, the inconsistencies between the suspect’s clothing
as described by the complainant and the clothing worn by the man who
walked past the officer on North Goodman Street rendered the officer’s
suspicion that the man was the suspect less than reasonable (see
People v Thompson, 127 AD3d 658, 661; Noah, 107 AD3d at 1412; People v
Polhill, 102 AD3d 988, 989; People v Beckett, 88 AD3d 898, 900).
Contrary to the People’s contention, moreover, we conclude that the
man’s conduct in staring straight ahead as he walked among the police
cars was “innocuous and readily susceptible of an innocent
interpretation” and, as such, did not generate a reasonable suspicion
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                                                         KA 14-01562

of criminality (People v Powell, 246 AD2d 366, 369, appeal dismissed
92 NY2d 886).

     Given that the stop of defendant’s vehicle was not supported by a
reasonable suspicion of criminality, the officer’s observation of the
actual suspect in the front seat with a weapon in his waistband was
“the unattenuated by-product of the [illegal] stop” (People v Smith, 1
AD3d 965, 966) and, inasmuch as the disposal of the weapons during the
ensuing chase was precipitated by that illegality, the weapons should
have been suppressed (see People v Carmichael, 92 AD3d 687, 688, lv
dismissed 19 NY3d 958; People v McFadden, 136 AD2d 934, 935). In
addition, because our determination results in the suppression of all
evidence supporting the crimes charged, the indictment must be
dismissed (see People v Freeman, 144 AD3d 1650, 1651).

     We therefore reverse the judgment and grant defendant’s motion
insofar as it sought suppression of tangible evidence, dismiss the
indictment, and remit the matter to Supreme Court for proceedings
pursuant to CPL 470.45. In light of our decision, we do not address
defendant’s remaining contentions.




Entered:   April 28, 2017                      Frances E. Cafarell
                                               Clerk of the Court
