THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. RODERICK ASBURY DEFENDANT APPELLANT (2026)

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 supplemental motion seeking to suppress tangible property and statements are granted, the indictment is dismissed, and the matter is remitted to Monroe County Court 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]) and criminal possession of a weapon in the third degree (§ 265.02 [3]).

Defendant contends that County Court erred in denying those parts of his supplemental motion seeking to suppress tangible property and statements obtained as a result of an arrest and subsequent search that were not supported by probable cause. We agree.

Initially, the People assert on appeal that defendant's supplemental motion insofar as it sought to suppress evidence was untimely. The People failed to preserve for our review that alternative ground for affirmance (see CPL 470.05 [2]; People v Phillips, 225 AD2d 1043, 1044 [4th Dept 1996]) and, in any event, we are precluded from reviewing it on defendant's appeal inasmuch as the court did not make a finding adverse to defendant with respect to the timeliness of his supplemental motion (see People v Young, 243 AD3d 1303, 1307 [4th Dept 2025]; see generally People v Garrett, 23 NY3d 878, 885 n 2 [2014], rearg denied 25 NY3d 1215 [2015]).

“It is well settled that, although a defendant who challenges the legality of a search and seizure has the burden of proving illegality, the People are nevertheless put to the burden of going forward to show the legality of the police conduct in the first instance” (People v Walker, 221 AD3d 1568, 1568 [4th Dept 2023] [internal quotation marks omitted]; see People v Berrios, 28 NY2d 361, 367 [1971]).

Under the fellow officer rule (see People v Rosario, 78 NY2d 583, 588 [1991], cert denied 502 US 1109 [1992]), “[a] police officer is entitled to act on the strength of a radio bulletin or a telephone or teletype alert from a fellow officer or department and to assume its reliability” (People v Lypka, 36 NY2d 210, 213 [1975]). “Information received from another police officer is presumptively reliable” (People v Ketcham, 93 NY2d 416, 420 [1999]).

“But where on a motion to suppress, a challenge to the receiver's action is made, the presumption of probable cause that originally cloaked that action disappears from the case” (Lypka, 36 NY2d at 214; see Rosario, 78 NY2d at 588; People v Landy, 59 NY2d 369, 375 [1983]). If a defendant raises a “specific challenge” to the reliability of information relayed, the reliability of such information may not be assumed by the suppression court (People v Dodt, 61 NY2d 408, 416 [1984]; see People v Arefaine, 221 AD2d 979, 979 [4th Dept 1995], lv denied 87 NY2d 919 [1996]; cf. People v Rogers, 152 AD2d 947, 948 [4th Dept 1989], lv denied 74 NY2d 851 [1989]). “[B]are reliance on an unsubstantiated hearsay communication from the instigating officer or department will not suffice for probable cause” (Lypka, 36 NY2d at 214). “[T]he People must demonstrate that the sender or sending agency itself possessed the requisite probable cause to act” (id.; see Dodt, 61 NY2d at 416). The People may satisfy their burden with “double hearsay,” or “hearsay-upon-hearsay,” so long as both prongs—basis of knowledge and veracity components—of Aguilar–Spinelli are met at every link in the hearsay chain (Ketcham, 93 NY2d at 421 [internal quotation marks omitted]; see People v Parris, 83 NY2d 342, 348 [1994]; People v DiFalco, 80 NY2d 693, 696 [1993]).

Here, the suppression hearing testimony established that defendant was arrested by two police officers and that, upon a search of defendant's person, the officers recovered a firearm. At the hearing, one of the officers (first officer) gave testimony establishing that he and his partner (second officer), in arresting defendant, relied upon “information acquired from [another] officer[ ]” (Landy, 59 NY2d at 374). Therefore, “the prosecution [bore] the burden of establishing that the officer imparting the information had probable cause to act” (Ketcham, 93 NY2d at 420). At the hearing, the first officer testified that defendant was on a Rochester Police Department “wanted board” for the section of the City of Rochester to which that officer was assigned. In addition, the first officer testified that he had read an underlying report concerning a prior shooting incident, which included reference to a handgun and a 9 millimeter casing that was recovered in front of defendant's house, and that he had spoken to the officer who completed the report (third officer). The first officer also reviewed a video of the shooting incident and an accompanying supporting deposition of a civilian who owned property in the vicinity of the shooting. The first officer testified that the civilian property owner had identified defendant in the video as the shooter and that she had reported having interacted with him more than 100 times.

We conclude that the civilian's basis of knowledge was not established at the hearing. “The ‘basis-of-knowledge’ prong of the test may be satisfied upon a showing that the information furnished is so detailed as to make it clear that it must have been based upon personal knowledge” (People v Jean-Charles, 226 AD2d 395, 396 [2d Dept 1996], lv denied 88 NY2d 987 [1996]; see Parris, 83 NY2d at 350). “The basis of knowledge component ․ requires that the information provided by the informant be corroborated or confirmed through details sufficient in number and suggestive of, or directly related to, the criminal activity informed about” (Delgado v City of New York, 86 AD3d 502, 507 [1st Dept 2011]; see Parris, 83 NY2d at 350). Although the first officer testified that the civilian property owner had previously had more than 100 interactions with defendant, the record reflects that the level of detail needed to enable the court to determine whether her identification of defendant was “more than mere speculation” is lacking (People v Hanlon, 36 NY2d 549, 558 [1975]). Notably, the People never offered the supporting deposition or the video of the underlying incident at the suppression hearing, and the hearing testimony failed to provide the requisite evidence of the civilian's “own description of underlying circumstances personally observed” (People v Bigelow, 66 NY2d 417, 423 [1985]; see People v Diaz, 274 AD2d 589, 589 [2d Dept 2000]). Although police observations can provide the corroborating details required to allow a court to properly infer a basis of knowledge, no such details were offered at the hearing (see Bigelow, 66 NY2d at 423-424). As an example, the first officer testified that he had observed defendant “half a dozen times or so” prior to defendant's arrest, but that he could not identify defendant in the video “because the video was grainy.” As another example, the court asked the first officer, “Did [the third officer] relay to you that he had had any prior involvement with [defendant]?,” to which the first officer responded, “I did not ask him.” As a result of the lack of detail, the court was relegated to reliance upon the first officer's conclusory statement—provided to him by the civilian property owner—that defendant was the shooter in the underlying incident—“in order to determine the reliability of the information claimed to have established probable cause” (Parris, 83 NY2d at 350; cf. People v Maldonado, 55 AD3d 626, 627 [2d Dept 2008]).

Based on the foregoing, we conclude that the firearm recovered from defendant's person, as well as the statements he subsequently made to the police, must be suppressed. We therefore reverse the judgment, vacate the plea, and grant those parts of the supplemental motion seeking to suppress tangible property and statements. Moreover, inasmuch as our determination results in the suppression of all evidence in support of the crimes charged, we dismiss the indictment and remit the matter to County Court for proceedings pursuant to CPL 470.45 (see People v Cady, 103 AD3d 1155, 1157 [4th Dept 2013]).

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court