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

270
KA 13-00051
PRESENT: WHALEN, P.J., CENTRA, CARNI, DEJOSEPH, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARQUES KING, DEFENDANT-APPELLANT.


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

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered October 4, 2012. The judgment convicted
defendant, upon his plea of guilty, of criminal sale 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, that part of the
omnibus motion seeking to suppress the evidence seized from
defendant’s person is granted, and the matter is remitted to Onondaga
County Court for further proceedings on the indictment.

     Memorandum: On appeal from a judgment convicting him, upon his
plea of guilty, of criminal sale of a controlled substance in the
third degree (Penal Law § 220.39), defendant contends, inter alia,
that County Court erred in denying that part of his omnibus motion
seeking to suppress evidence seized from his person. We agree.

     The evidence at the suppression hearing established that, at
approximately 3:35 a.m., in an area known for drug activity, two
police officers happened upon the scene of a hand-to-hand transaction
between defendant and a female. The female was then observed to place
an object “in her left bra area.” Upon seeing the officers, defendant
and the female “immediately separated and moved away.” The two
officers separately approached defendant and the female. When asked
why he was at that location at that time in the morning, defendant
informed the officer that he was visiting an older woman who was
sitting on a nearby porch. That woman, however, denied knowing
defendant. At that point the officer asked defendant for permission
to “check[] him,” and defendant consented. Although the officer did
not find anything on defendant’s person, the officer placed defendant,
uncuffed, in the backseat of the patrol vehicle.
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                                                         KA 13-00051

     Meanwhile, the second officer was speaking with the female, and
he observed a bag with a “beige chunky substance” tucked into her
shoelace. The woman admitted purchasing cocaine from defendant,
removed a bag of what appeared to the officer to be cocaine, and
informed the officer that defendant “had crack cocaine between his
buttocks.”

     At that point, the two officers removed defendant from the patrol
vehicle and performed a second pat-down search of his person. During
that search, one of the officers felt “a hard unknown object between
his buttocks.” Although defendant stated that he would remove the
object, he attempted to secrete the object even further into “his
rectum,” resulting in a struggle between defendant and the officers.
Defendant was then transported to the police station, at which time a
strip search was conducted and the officers recovered “a section of
plastic [containing cocaine] at the rear of his body between his
buttocks.”

     Following the suppression hearing, the court determined that,
although defendant was illegally detained, there was no need to
suppress the cocaine seized from defendant’s person. The court
concluded that the information from the female at the scene, in
conjunction with the officers’ observations, gave the officers
probable cause to arrest defendant and “provided a significant
intervening circumstance, independent of the illegal detention, that
attenuated the connection between the detention and the seizure of the
crack cocaine [and served] to dissipate the taint of the illegality.”
On this appeal, defendant contends that the court erred in finding
that the seizure of the cocaine from his person was attenuated from
the unlawful detention.

     As a preliminary matter, we note that, “[s]ince we are reviewing
a judgment on the defendant’s appeal, and the issue of whether the
defendant was [unlawfully detained] was not decided adversely to him,
we are jurisdictionally barred from considering” the People’s
contention that the police officers’ encounter with defendant was
lawful at its inception and at every stage thereafter (People v
Harris, 93 AD3d 58, 66, affd 20 NY3d 912; see CPL 470.15 [1]; People v
Concepcion, 17 NY3d 192, 195).

     We agree with defendant that the court erred in determining that
the seizure of evidence from his person was attenuated from the taint
of the illegality (see People v Williams, 79 AD3d 1653, 1655, affd 17
NY3d 834, 836; cf. People v Alexander, 189 AD2d 189, 195-196; People v
Emrick, 89 AD2d 787, 788). “While the effect of illegally initiated
police intrusion may potentially become attenuated, as a practical
matter there is rarely opportunity for the attenuation of primary
official illegality in the context of brief, rapidly unfolding street
or roadside encounters predicated on less than probable cause . . .
[O]nce a wrongful police-initiated intrusion is established,
suppression of closely after-acquired evidence appears to follow
ineluctably” (People v Packer, 49 AD3d 184, 186, affd 10 NY3d 915).

     In view of our determination, we do not reach defendant’s
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                                           KA 13-00051

remaining contentions.




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