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

514
KA 13-01953
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                             MEMORANDUM AND ORDER

DOMINIC A. DANIELS, DEFENDANT-RESPONDENT.


FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR APPELLANT.

JEREMY D. SCHWARTZ, BUFFALO, FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), dated August 14, 2013. The order, among other
things, granted the motion of defendant to suppress his statement and
certain physical evidence.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed and the indictment is dismissed.

     Memorandum: The People appeal from an order granting defendant’s
motion to suppress the statement made by defendant to the police and
the cocaine seized by them following an automobile stop. Many of the
relevant facts are not in dispute. The arresting officer and his
partner heard a broadcast over police radio stating that a vehicle
with a particular description was involved in an armed robbery of a
gas station in Buffalo. Approximately six minutes later, the officers
observed a vehicle matching the description of the vehicle in the
broadcast at an intersection less than a mile from the gas station in
question. Observing that the windows of the vehicle were excessively
tinted, in violation of the Vehicle and Traffic Law, the officers
stopped the vehicle and ordered defendant to exit. Defendant was
alone in the vehicle. After defendant stepped out of the vehicle, the
arresting officer conducted a pat frisk but found no weapons. When
defendant did not respond to the officer’s inquiry whether he had
“anything on” him, the officer used his forearm to pin defendant
against the vehicle. When the officer again asked defendant whether
he had anything on him, defendant either said “nothing” or did not
answer, and the officer asked for a third time whether defendant had
anything on him. Defendant finally stated that he had drugs in the
pocket of his pants. The officer’s partner recovered the drugs, which
were later determined to be cocaine, and placed defendant under
arrest. The police subsequently learned that neither defendant nor
his vehicle was involved in the gas station robbery.
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                                                         KA 13-01953

     After being indicted on one count of criminal possession of a
controlled substance in the fourth degree (Penal Law § 220.09 [1]),
defendant moved to suppress the statement and the cocaine, contending,
inter alia, that his statement to the police that he had drugs was
involuntary and that the cocaine thus constituted the fruit of the
poisonous tree. Following a suppression hearing, Supreme Court
granted defendant’s motion, and we now affirm. As a preliminary
matter, we agree with the People that the stop of defendant’s vehicle
was lawful based on the arresting officer’s observation of its
excessively tinted windows, notwithstanding the officer’s admission
that he intended to stop the vehicle in any event because it matched
the description of a vehicle allegedly involved in the robbery (see
generally People v Pealer, 89 AD3d 1504, 1506, affd 20 NY3d 447, cert
denied ___ US ___, 134 S Ct 105; People v Robinson, 97 NY2d 341, 346).
The officer also acted lawfully in ordering defendant to exit the
vehicle based on the traffic violation, even in the absence of
evidence that he possessed a weapon or had committed a crime (see
People v Robinson, 74 NY3d 773, 775, cert denied 493 US 966; People v
Binion, 100 AD3d 1514, 1515, lv denied 21 NY3d 911).

     Nevertheless, even assuming, arguendo, that the officers had
“reasonable suspicion that criminal activity [was] afoot” so as to
justify the pat frisk of defendant (People v Goodson, 85 AD3d 1569,
1570, lv denied 17 NY3d 953 [internal quotation marks omitted]; see
People v Daniels, 103 AD3d 1204, 1205, lv denied 22 NY3d 1137), we
conclude that defendant’s statement in which he admitted to possessing
drugs was involuntary because it was “obtained from him . . . by the
use or threatened use of physical force” by the arresting officer (CPL
60.45 [2] [a]). “It is the People’s burden to prove beyond a
reasonable doubt that statements of a defendant they intend to rely
upon at trial are voluntary . . . To do that, they must show that the
statements were not products of coercion, either physical or
psychological . . . , or, in other words, that they were given as a
result of a ‘free and unconstrained choice by [their] maker’ . . . The
choice to speak where speech may incriminate is constitutionally that
of the individual, not the government, and the government may not
effectively eliminate it by any coercive device” (People v Thomas, 22
NY3d 629, 641-642).

     Here, the People failed to prove beyond a reasonable doubt that
defendant’s admission that he possessed drugs was the “result of a
‘free and unconstrained choice’ ” by defendant (id. at 641). Before
repeatedly asking defendant whether he had “anything” on him, the
arresting officer conducted a pat frisk and found no weapons. There
was thus no need for the officer to be concerned about his safety.
Moreover, although defendant did not respond when he was initially
asked whether he had anything on him, that did not justify the use of
physical force by the officer. It is clear that, as the court
determined, defendant’s eventual incriminating response was prompted
by the officer’s continuing use of force while repeating the same
question that defendant refused to answer or answered in a manner that
did not satisfy the officer. Although the People assert that the
officer was unable to complete his pat frisk because defendant was
attempting to flee, the court stated in its findings that defendant
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                                                         KA 13-01953

“did not flee or resist,” and the court’s determination in that regard
is supported by the record and will not be disturbed (see generally
People v Prochilo, 41 NY2d 759, 761).

     We thus conclude that the court properly granted defendant’s
suppression motion.




Entered:   May 9, 2014                          Frances E. Cafarell
                                                Clerk of the Court
