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

984
KA 13-00893
PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KAAZIM F. FREEMAN, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, KELLOGG, HUBER,
HANSEN, TODD, EVANS & FIGEL, PLLC, WASHINGTON, D.C. (THOMAS B. BENNETT
OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Douglas A.
Randall, J.), rendered March 12, 2013. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a
controlled substance in the third 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 controlled substance in
the third degree (Penal Law § 220.16 [1]), defendant contends that
County Court erred in refusing to suppress drugs and statements
obtained by the police after defendant was stopped for riding a
bicycle at night without a light in violation of Vehicle and Traffic
Law § 1236 (a). We agree with defendant that, following the
permissible stop of defendant on his bicycle, the officers improperly
escalated the encounter to a level two common-law inquiry by asking
defendant why he was so nervous and whether he was carrying drugs.
The officers’ inquiries, which involved “invasive questioning” that
was “focuse[d] on the possible criminality” of defendant (People v
Hollman, 79 NY2d 181, 191), were not supported by the requisite
founded suspicion of criminality (see People v Garcia, 20 NY3d 317,
324; People v Hightower, 136 AD3d 1396, 1397; see generally People v
Dealmeida, 124 AD3d 1405, 1407). The testimony at the suppression
hearing establishes that the officers observed nothing indicative of
criminality, and we conclude that defendant’s nervousness upon being
confronted by the police did not give rise to a founded suspicion that
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                                                         KA 13-00893

criminal activity was afoot (see Garcia, 20 NY3d at 324; Hightower,
136 AD3d at 1397; see generally Dealmeida, 124 AD3d at 1407). Because
defendant’s inculpatory oral response to the impermissible accusatory
questioning resulted in the seizure of the drugs from defendant’s
pocket and a postarrest written statement from defendant, the drugs
and the oral and written statements must be suppressed (see generally
Hightower, 136 AD3d at 1397)

     In light of our determination that the court should have   granted
those parts of defendant’s omnibus motion seeking to suppress   the
drugs and statements, defendant’s guilty plea must be vacated   (see
id.). In addition, because our determination results in the
suppression of all evidence in support of the crimes charged,   we
conclude that the indictment must be dismissed (see id.).




Entered:   November 18, 2016                    Frances E. Cafarell
                                                Clerk of the Court
