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

849
KA 11-02049
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WILLIE SYKES, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered September 16, 2011. The judgment
convicted defendant, upon his plea of guilty, of criminal possession
of a weapon in the second degree, criminal possession of a weapon in
the third degree, unlawful possession of marihuana, failure to display
head lamps and improper license plates.

     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:
Defendant appeals 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]), criminal possession of a weapon in the third degree
(§ 265.02 [1]), unlawful possession of marihuana (§ 221.05), failure
to display head lamps (Vehicle and Traffic Law § 375 [2] [a] [1]), and
improper license plates (§ 402 [1]). We agree with defendant that
Supreme Court erred in refusing to suppress the gun recovered from the
vehicle based upon the inevitable discovery doctrine. The testimony
at the suppression hearing established that, during a lawful traffic
stop, one of the police officers asked defendant whether there were
any drugs or weapons in the vehicle before instructing defendant to
exit the vehicle. After defendant admitted to having marihuana on his
person, the police officer asked defendant to exit the vehicle and,
following suspicious behavior by another occupant of the vehicle,
searched the vehicle and found a gun in plain view. Notably, the
court did not address whether the officer had the requisite founded
suspicion of criminal activity to justify an inquiry concerning the
presence of drugs or weapons in the vehicle (see generally People v
Garcia, 20 NY3d 317, 322-323; People v De Bour, 40 NY2d 210, 223).
Instead, the court refused to suppress the gun on the ground that the
police “could” have taken various actions after the traffic stop that
would have inevitably led to the discovery of the gun. The People,
                                 -2-                           849
                                                         KA 11-02049

however, did not raise the inevitable discovery doctrine as a ground
for denying suppression of the gun, nor did they meet their burden of
“demonstrat[ing] a very high degree of probability that normal police
procedures would have uncovered the challenged evidence independently
of [a] tainted source” (People v Turriago, 90 NY2d 77, 86, rearg
denied 90 NY2d 77 [internal quotation marks omitted]; see People v
Fitzpatrick, 32 NY2d 499, 507, cert denied 414 US 1033, 1050; People v
Walker, 198 AD2d 785, 787; cf. People v Watson, 188 AD2d 501, 502).

     Further, even if a founded suspicion of criminal activity
supported the police officer’s inquiry (see Garcia, 20 NY3d at 322-
323), we are precluded from affirming with respect to the court’s
refusal to suppress the gun “on a theory not reached by the
suppression court” (People v Ingram, 18 NY3d 948, 949; see People v
Concepcion, 17 NY3d 192, 195; People v LaFontaine, 92 NY2d 470, 473-
474, rearg denied 94 NY2d 849). We therefore hold the case, reserve
decision and remit the matter to Supreme Court to determine whether
the police officer had a founded suspicion of criminal activity to
justify his inquiry (see generally People v Coles, 105 AD3d 1360,
1363).




Entered:   October 4, 2013                     Frances E. Cafarell
                                               Clerk of the Court
