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

112
KA 12-01987
PRESENT: WHALEN, P.J., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

PHILIP FINCH, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment   of the Onondaga County Court (Joseph E.
Fahey, J.), rendered August   28, 2012. 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 said appeal from the judgment insofar
as it imposed sentence is unanimously dismissed and the judgment is
reversed on the law, the plea is vacated, that part of the omnibus
motion seeking to suppress physical evidence is granted, the
indictment is dismissed, and the matter is remitted to Onondaga 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 physical evidence, i.e., heroin,
found in the vehicle in which he was a passenger and on his person
because the police arrested him without probable cause. We agree.

     It is well established that, “[i]n evaluating police conduct, the
court must determine whether the action taken was justified in its
inception and at every subsequent stage of the encounter” (People v
Nicodemus, 247 AD2d 833, 835, lv denied 92 NY2d 858). Here, there is
no dispute that the vehicle was effectively seized when the police
positioned their patrol cars to block the vehicle from backing out and
leaving the parking lot (see People v Layou, 71 AD3d 1382, 1383).
Contrary to defendant’s contention, however, we conclude that the
seizure was lawful inasmuch as “the totality of the information known
to the police at the time of the stop of [the vehicle] ‘supported a
reasonable suspicion of criminal activity . . . [, i.e.,] that quantum
of knowledge sufficient to induce an ordinarily prudent and cautious
[person] under the circumstances to believe criminal activity is at
                                 -2-                           112
                                                         KA 12-01987

hand’ ” (People v Andrews, 57 AD3d 1428, 1429, lv denied 12 NY3d 850).
Indeed, the evidence at the suppression hearing established that the
police had reasonable suspicion that at least one occupant of the
vehicle was involved in an earlier violent home invasion burglary in
which the suspects had sought drugs and money, and that said occupant
had attempted to arrange a drug transaction with an investigator at
the location of the seizure (see People v Strahin, 114 AD3d 1284,
1284, lv denied 23 NY3d 968).

     We nonetheless agree with defendant that he was unlawfully
arrested without probable cause prior to the police finding packets of
heroin in plain view in the vehicle. Although “[i]t is well
established that not every forcible detention constitutes an arrest”
(People v Drake, 93 AD3d 1158, 1159, lv denied 19 NY3d 1102), we
conclude that defendant was arrested when an officer, with his weapon
drawn, opened the unlocked front seat passenger door of the vehicle,
physically removed defendant, had him lie down on the ground,
handcuffed and searched him, and placed him in a patrol vehicle (see
People v Lee, 110 AD3d 1482, 1484; Nicodemus, 247 AD2d at 835).
“Under such circumstances, ‘a reasonable [person] innocent of any
crime, would have thought’ that he [or she] was under arrest” (Lee,
110 AD3d at 1484, quoting People v Yukl, 25 NY2d 585, 589, cert denied
400 US 851). Contrary to the People’s contention and the court’s
determination, the officer’s conduct “ ‘went beyond merely ordering
defendant from [the vehicle]. [He] took the additional “protective
measures” of frisking defendant, handcuffing him and placing him in a
police car . . . [S]uch an intrusion amounts to an arrest[,] which
must be supported by probable cause’ ” (People v Williams, 79 AD3d
1653, 1654, affd 17 NY3d 834; see People v Johnson, 102 AD2d 616, 625,
lv denied 63 NY2d 776). Inasmuch as the police lacked probable cause
to arrest defendant before the officer returned to the vehicle and
discovered the packets of heroin, the court should have suppressed
that evidence, as well as the evidence subsequently found on
defendant’s person, as fruit of the poisonous tree (see Lee, 110 AD3d
at 1484). We therefore vacate defendant’s guilty plea, and “ ‘because
our determination results in the suppression of all evidence in
support of the crimes charged, the indictment must be dismissed’ ”
(id.).

     Finally, we dismiss the appeal to the extent that defendant
challenges the severity of his sentence (see People v Heatherly, 132
AD3d 1277, 1279). “Defendant has completed serving [his] sentence,
including any period of postrelease supervision, and, therefore, that
part of the appeal is moot” (id.).




Entered:   March 25, 2016                       Frances E. Cafarell
                                                Clerk of the Court
