The People, etc., appellant, v Lazeric Johnson, respondent. v. << (2010)

Argued-November 30, 2010

DECISION & ORDER

Appeal by the People from (1) an order of the Supreme Court, Queens County (Grosso, J.), dated April 16, 2009, which, after a hearing, granted that branch of the defendant's omnibus motion which was to suppress physical evidence recovered from the defendant's vehicle, (2) an order of the same court dated May 14, 2009, which, after a hearing, granted that branch of the defendant's omnibus motion which was to suppress physical evidence recovered from a police van, and (3), a decision of the same court dated June 2, 2009.

ORDERED that the appeal from the decision dated June 2, 2009, is dismissed, as no appeal lies from a decision (see Schicchi v. Green Constr.   Corp., 100 A.D.2d 509);  and it is further,

ORDERED that the order dated April 16, 2009, is affirmed;  and it is further,

ORDERED that the order dated May 14, 2009, is reversed, on the law and the facts, that branch of the defendant's omnibus motion which was to suppress physical evidence recovered from a police van is denied, and the matter is remitted to the Supreme Court, Queens County, for further proceedings.

The resolution of issues of credibility made by a hearing court is entitled to great deference on appeal, and will not be disturbed unless it is manifestly erroneous or clearly unsupported by the record (see People v. Shackleford, 57 AD3d 578;  People v. Sutherland, 40 AD3d 890, 891;  People v. Collier, 35 AD3d 628, 629).   The hearing court's determination as to the two police officers' credibility was not manifestly erroneous and was supported by the record (see People v. Rivera, AD3d, 2010 N.Y. Slip Op 08966 [2d Dept 2010];  cf.  People v. Hills, 295 A.D.2d 365).   Accordingly, we do not disturb the hearing court's finding that the traffic stop was improper and the arrest of the defendant was unlawful.   Therefore, we affirm the April 16, 2009, order granting that branch of the defendant's omnibus motion which was to suppress the physical evidence recovered from his vehicle immediately after his arrest.

However, the Supreme Court erred in granting that branch of the defendant's omnibus motion which was to suppress the physical evidence recovered from the police van used to transport the defendant following his arrest.  “Generally, when the police have acted illegally, evidence which ‘has been come at by exploitation of that illegality’ should be suppressed” (People v. Gethers, 86 N.Y.2d 159, 161-162, quoting Wong Sun v. United States, 371 U.S. 471, 488).   Under the attenuation exception to the exclusionary rule, “[t]he question to be resolved when it is claimed that evidence subsequently obtained is ‘tainted’ or is ‘fruit’ of a prior illegality is whether the challenged evidence was [obtained] ‘by exploitation [of the] initial illegality or instead by means sufficiently distinguishable to be purged of the primary taint’ ” (Segura v. United States, 468 U.S. 796, 804-805, quoting Wong Sun v. United States, 371 U.S. at 488;  see People v. Paulman, 5 NY3d 122, 130-131).   Here, contrary to the Supreme Court's determination, the defendant's act of abandoning a quantity of cocaine inside the police van used to transport him to the police precinct following his arrest, is attenuated from the unlawful traffic stop and arrest inasmuch as the abandonment was an “independent act involving a calculated risk” (People v. Boodle, 47 N.Y.2d 398, 404, cert denied 444 U.S. 969;  see People v. Ramirez-Portoreal, 88 N.Y.2d 99, 110;  People v. Weekes, 52 AD3d 1032, 1034-1035;  Matter of Deshorn L., 277 A.D.2d 238).   Accordingly, the May 14, 2009, order granting that branch of the defendant's omnibus motion which was to suppress the physical evidence recovered from the police van must be reversed.

RIVERA, J.P., DILLON, ANGIOLILLO and AUSTIN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court