

People v Flavius (2015 NY Slip Op 06516)





People v Flavius


2015 NY Slip Op 06516


Decided on August 12, 2015


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on August 12, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

JOHN M. LEVENTHAL, J.P.
THOMAS A. DICKERSON
SHERI S. ROMAN
SYLVIA O. HINDS-RADIX, JJ.


2014-10357
 (Ind. No. 13-000620)

[*1]The People of the State of New York, appellant, 
vDevon J. Flavius, respondent.


David M. Hoovler, Middletown, N.Y. (Andrew R. Kass of counsel), for appellant.
Silver & Lesser, P.C. (Steven A. Kimmel, Washingtonville, N.Y., of counsel), for respondent.

DECISION & ORDER
Appeal by the People from an order of the County Court, Orange County (De Rosa, J.), dated July 17, 2014, which granted that branch of the defendant's omnibus motion which was to suppress physical evidence and his statements to law enforcement officials.
ORDERED that the order is affirmed.
Contrary to the People's contention, the frisk of the defendant by a police officer was not justified, as there was no circumstance to support a reasonable suspicion that the officer was in danger of physical injury (see  CPL 140.5[3]; People v Holmes , 81 NY2d 1056, 1058; People v Martinez , 191 AD2d 457, 458-459; People v Terrell , 185 AD2d 906, 907-908; cf. People v Batista , 88 NY2d 650, 654-655). Therefore, the gun and holster found on the defendant were properly suppressed. The hearing court also properly granted suppression of the defendant's subsequent statement to police as the fruit of the illegal search and seizure (see Wong Sun v United States , 371 US 471, 484-487; People v Milerson , 72 AD2d 588, 589, affd  51 NY2d 919; cf. People v Martinez , 37 NY2d 662, 670-671).
LEVENTHAL, J.P., DICKERSON, ROMAN and HINDS-RADIX, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


