PEOPLE v. SUTTLES (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the plea is vacated, those parts of the omnibus motion seeking to suppress tangible property and statements are granted, the indictment is dismissed, and the matter is remitted to Supreme Court, Erie 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] ).  The conviction arises from a police encounter during which an officer approached the parked vehicle in which defendant was a passenger and observed that defendant was in possession of a handgun.  We agree with defendant that the police lacked reasonable suspicion to justify the initial seizure of the vehicle, and thus Supreme Court erred in refusing to suppress both the tangible property seized, i.e., the weapon, and statements defendant made to the police at the time of his arrest.  Here, police officers effectively seized the vehicle in which defendant was riding when their two patrol cars entered the parking lot in such a manner as to prevent the vehicle from being driven away (see People v. Jennings, 45 N.Y.2d 998, 999, 413 N.Y.S.2d 117, 385 N.E.2d 1045 [1978];  People v. Layou, 71 A.D.3d 1382, 1383, 897 N.Y.S.2d 325 [4th Dept. 2010];  cf. People v. Cintron, 125 A.D.3d 1333, 1334, 2 N.Y.S.3d 715 [4th Dept. 2015], lv denied 25 N.Y.3d 1071, 12 N.Y.S.3d 622, 34 N.E.3d 373 [2015] ).  The police had, at most, a “founded suspicion that criminal activity [was] afoot,” which permitted them to approach the vehicle and make a common-law inquiry of its occupants.  They did not, however, have “reasonable suspicion that [a] particular individual was involved in a felony or misdemeanor” to justify the seizure that occurred here (People v. Moore, 6 N.Y.3d 496, 498–499, 814 N.Y.S.2d 567, 847 N.E.2d 1141 [2006];  see Layou, 71 A.D.3d at 1383–1384, 897 N.Y.S.2d 325), and thus the weapon and defendant's statements should have been suppressed.  We therefore vacate defendant's guilty plea and, “because our determination results in the suppression of all evidence in support of the crimes charged, the indictment must be dismissed” (People v. Lee, 110 A.D.3d 1482, 1484, 974 N.Y.S.2d 676 [4th Dept. 2013] [internal quotation marks omitted];  see People v. Finch, 137 A.D.3d 1653, 1655, 28 N.Y.S.3d 190 [4th Dept. 2016] ).

In light of our determination, we need not address defendant's remaining contention.