IN RE: Brandon D.

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Supreme Court, Appellate Division, First Department, New York.

IN RE: Brandon D., A Person Alleged to be a Juvenile Delinquent, Appellant.  Presentment Agency

7789

Decided: May 31, 2012

Mazzarelli, J.P., Catterson, DeGrasse, Richter, Manzanet–Daniels, JJ. Tamara A. Steckler, The Legal Aid Society, New York (John A. Newbery of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel), for presentment agency.

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Order of disposition, Family Court, New York County (Mary E. Bednar, J.), entered on or about October 22, 2010, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed an act, which, if committed by an adult, would constitute the crime of criminal possession of stolen property in the fifth degree, and placed him on probation for a period of 18 months, unanimously reversed, on the law and the facts, without costs, appellant's suppression motion granted, and the petition dismissed.

Based on the evidence presented, appellant's motion to suppress the physical evidence and his statements should have been granted.   Appellant was seized when he exited the store and complied with the officer's order to stop.   It is apparent that appellant was not free to leave (see People v. Bora, 83 N.Y.2d 531, 534–535 [1994] ).   This constituted a level-three encounter, which was not justified by a reasonable suspicion that appellant committed a crime (see People v. De Bour, 40 N.Y.2d 210, 223 [1976] ).   There was no basis to detain appellant for possession of a gravity knife since there was no evidence that he knew his friend had the knife.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK