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

612
KA 10-01203
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

RODNEY T. MOBLEY, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (Joseph
D. Valentino, J.), rendered January 12, 2010. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second 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 motion seeking
to suppress tangible property and statements are granted, the indictment
is dismissed, and the matter is remitted to Supreme Court, Monroe County,
for proceedings pursuant to CPL 470.45.

     Memorandum: Defendant appeals from a judgment convicting him, upon
his plea of guilty, of criminal possession of a weapon in the second degree
(Penal Law ' 265.03 [3]). We agree with defendant that Supreme Court
erred in denying his motion to suppress tangible property, i.e., a handgun,
and his subsequent oral statements to the police because the police lacked
reasonable suspicion to justify a search of his person.

     On September 5, 2008, City of Rochester (City) police officers and
New York State Troopers were patrolling allegedly high crime areas of
the City. At approximately 7:30 p.m., a City police officer (the observing
officer) was in an unmarked vehicle parked at the corner of North and
Helena Streets. He observed defendant approximately 30 to 35 feet away,
standing with a group of five or six men at the corner of North and Grace
Streets, and he saw defendant use his right hand to Acup@ a weighted object
in his right pants pocket as he readjusted his clothing. The observing
officer radioed another officer in a marked New York State police vehicle
(the uniformed officer) that Aa kid@ on the corner Ahad made movements
towards his right side,@ and requested that the uniformed officer Astep
out with@ defendant. When the marked police vehicle approached defendant
on North Street, defendant quickly turned away and walked down Grace
Street. The observing officer then drove the unmarked vehicle past
                                    -2-                                 612
                                                                KA 10-01203

defendant, and the observing officer=s partner exited the vehicle,
identified himself as a police officer and ordered defendant to stop and
Ashow his hands.@ At that point, the marked vehicle approached on Grace
Street and the uniformed officer observed an object in defendant=s left
hand. After the uniformed officer exited the marked vehicle, he observed
defendant place the object into his left rear pants pocket. The uniformed
officer seized defendant=s hands, patted his left rear pants pocket, felt
a hard object, reached into that pocket and removed a cell phone. He
then patted defendant=s right front pocket and felt the outline of a gun.

      A police officer may stop a person to search for weapons where the
officer Areasonably suspects that such person is committing, has committed
or is about to commit@ a crime (CPL 140.50 [1]), and the officer Areasonably
suspects that he [or she] is in danger of physical injury@ (CPL 140.50
[3]). AA stop based on reasonable suspicion will be upheld so long as
the intruding officer can point to >specific and articulable facts which,
along with any logical deductions, reasonably prompted th[e] intrusion= @
(People v Brannon, 16 NY3d 596, 602). In contrast, however, Aactions
that are >at all times innocuous and readily susceptible of an innocent
interpretation . . . may not generate a founded suspicion of criminality= @
(People v Riddick, 70 AD3d 1421, 1422, lv denied 14 NY3d 844; see People
v De Bour, 40 NY2d 210, 216). If the intruding officer lacks personal
knowledge sufficient to establish reasonable suspicion, information that
the intruding officer received Aas a result of communication with@ a fellow
officer is presumed reliable (People v Ketcham, 93 NY2d 416, 419 [internal
quotation marks omitted]; see People v Ramirez-Portoreal, 88 NY2d 99,
113). Nevertheless, a radio call from a fellow officer that defendant
had made movements towards his right side Aabsent any indication of a
weapon such as the visible outline of a gun or the audible click of the
magazine of a weapon, does not establish the requisite reasonable suspicion
that defendant had committed or was about to commit a crime@ (People v
Ingram, 114 AD3d 1290, 1293 [internal quotation marks omitted]; see People
v Cady, 103 AD3d 1155, 1156; Riddick, 70 AD3d at 1422-1423). AThe mere
fact that defendant was located in an alleged high crime area does not
supply that requisite reasonable suspicion, in the absence of >other
objective indicia of criminality= @ (Riddick, 70 AD3d at 1423; see People
v Powell, 246 AD2d 366, 369, appeal dismissed 92 NY2d 886). Moreover,
flight from an approaching police vehicle does not provide the requisite
reasonable suspicion absent Aspecific circumstances indicating that the
suspect may be engaged in criminal activity@ (People v Sierra, 83 NY2d
928, 929; see Riddick, 70 AD3d at 1422).

     In addition, we note that there was no evidence that the officer
Areasonably suspect[ed] that he [was] in danger of physical injury@ (CPL
140.50 [3]; see Powell, 246 AD2d at 369-370). We conclude that defendant=s
act of emptying the contents of his left hand, i.e., a cell phone, into
his pocket in responding to a police command to Ashow his hands@ was an
innocuous act (see Powell, 246 AD2d at 369). The intruding officerChere,
the uniformed officerCdid not observe, nor was he aware of, any threatening
gestures or weapons (see id.; cf. People v Sims, 106 AD3d 1473, 1474,
appeal dismissed 22 NY3d 992). Because the officer lacked reasonable
suspicion that defendant was committing a crime and had no reasonable
basis to suspect that he was in danger of physical injury, we further
                                   -3-                                 612
                                                               KA 10-01203

conclude that the ensuing pat frisk of defendant was unlawful (see CPL
140.50 [1], [3]; Riddick, 70 AD3d at 1424; Powell, 246 AD2d at 369-370).

     Inasmuch as the pat frisk was unlawful, Athe handgun seized by the
police should have been suppressed . . . , and the statements made by
defendant to the police following the unlawful seizure also should have
been suppressed as fruit of the poisonous tree@ (Riddick, 70 AD3d at 1424).
 As a result, defendant=s guilty plea must be vacated and, because our
determination results in the suppression of all evidence of the charged
crime, the indictment must be dismissed (see id.; People v Stock, 57 AD3d
1424, 1425). We therefore remit the matter to Supreme Court for
proceedings pursuant to CPL 470.45.




Entered:   August 8, 2014                          Frances E. Cafarell
                                                   Clerk of the Court
