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

276
KA 16-01335
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN,


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                             MEMORANDUM AND ORDER

MICHAEL SWEAT, DEFENDANT-RESPONDENT.


MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (NICHOLAS
T. TEXIDO OF COUNSEL), FOR APPELLANT.

MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Penny M.
Wolfgang, J.), dated May 16, 2016. The order granted that part of
defendant’s omnibus motion to suppress physical evidence and
statements made to the police.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Supreme Court, Erie County, for
further proceedings in accordance with the following memorandum: The
People appeal from an order granting that part of defendant’s omnibus
motion to suppress physical evidence, i.e., a gun, and statements made
to the police. At the suppression hearing, a police officer testified
that he was traveling in a marked patrol vehicle when he saw defendant
standing on the porch of a home. After defendant looked in the
direction of the approaching patrol vehicle, he turned and entered the
home. The officer pulled his vehicle to the side of the road and
proceeded on foot to the porch, where he encountered defendant as he
reemerged from the home. The officer asked, “What are you doing
here?” When defendant did not respond, the officer conducted a search
of the home and found a gun in a front closet near the entrance to the
porch. Thereafter, defendant was arrested and gave statements.
Supreme Court suppressed the weapon and statements on the ground that,
because the initial encounter between defendant and the police was an
unlawful level one encounter under People v De Bour (40 NY2d 210,
223), the ensuing search of the home was unwarranted.

     We agree with the People that the court erred in suppressing the
gun and statements without making any determination on defendant’s
standing to challenge the allegedly unlawful search of the home.
Because “our review is limited to the issues determined by the court”
(People v Schrock, 99 AD3d 1196, 1197), and the court failed to rule
on the threshold issue of standing, we hold the case, reserve
decision, and remit the matter to Supreme Court to rule on that issue.
                                 -2-                           276
                                                         KA 16-01335

If the court determines that defendant has standing, the court should
then determine whether one of the homeowners consented to the search.




Entered:   March 24, 2017                       Frances E. Cafarell
                                                Clerk of the Court
