PEOPLE v. DEL VECCHIO (2000)

Defendant appeals from a judgment convicting her of criminal mischief in the fourth degree (Penal Law § 145.00[1] ) and other crimes entered upon a plea of guilty after her suppression motion was denied.   Defendant was the passenger in a vehicle stopped by a Deputy Sheriff on North Main Street in Canandaigua on November 17, 1998 one-half hour after a reported larceny at the Bloomfield Car Wash in Holcomb.   Following the stop, defendant was briefly questioned and subjected to a frisk search.   A showup identification procedure was conducted, and the driver of the vehicle was arrested.   The vehicle was then searched, and defendant was further questioned.

We reject defendant's contention that the stop was illegal (see, People v. Daniels, 275 A.D.2d 1006, 714 N.Y.S.2d 618).   The court erred, however, in denying that part of defendant's motion seeking suppression of the evidence seized during the frisk search.   Defendant was not suspected of a “serious and violent crime [such] as robbery or * * * burglary” (People v. Mack, 26 N.Y.2d 311, 317, 310 N.Y.S.2d 292, 258 N.E.2d 703, cert. denied 400 U.S. 960, 91 S.Ct. 357, 27 L.Ed.2d 270) or “a crime involving potentially dangerous instruments” (People v. Burks, 235 A.D.2d 373, 374, 652 N.Y.S.2d 980, lv. denied 89 N.Y.2d 1033, 659 N.Y.S.2d 863, 681 N.E.2d 1310), and the Deputy failed to articulate a reason justifying the frisk search (see, People v. Barriera, 191 A.D.2d 153, 155, 594 N.Y.S.2d 177, appeal dismissed 81 N.Y.2d 1040, 600 N.Y.S.2d 440, 616 N.E.2d 1102).   Defendant does not contend that any other evidence should be suppressed as the fruit of that illegal frisk search.   Thus, we reverse the judgment, vacate the plea, grant defendant's motion to suppress in part by suppressing the evidence seized during the frisk search and remit the matter to Ontario County Court for further proceedings on the indictment.

Judgment unanimously reversed on the law, plea vacated, motion to suppress granted in part and matter remitted to Ontario County Court for further proceedings on the indictment.

MEMORANDUM: