PEOPLE v. RUTLEDGE

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

The PEOPLE, etc., appellant, v. Jasper RUTLEDGE, respondent.

Decided: September 26, 2005

STEPHEN G. CRANE, J.P., SONDRA MILLER, DANIEL F. LUCIANO and ROBERT A. LIFSON, JJ. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Donna Aldea, and Daniel Bresnahan of counsel), for appellant. Lynn W.L. Fahey, New York, N.Y. (Barry Stendig of counsel), for respondent.

Appeal by the People (1) from an order of the Supreme Court, Queens County (Grosso, J.), dated February 28, 2003, which, after a hearing, granted that branch of the defendant's omnibus motion which was to suppress physical evidence (2), as limited by their brief, from so much of an order of the same court dated April 8, 2003, as, upon reargument, adhered to its prior determination, and (3) from a “Corrected Order” of the same court dated May 2, 2003.

ORDERED that the appeal from the order dated February 28, 2003, is dismissed, as that order was superseded by the order dated April 8, 2003, made upon reargument;  and it is further,

ORDERED that the order dated April 8, 2003, is affirmed;  and it is further,

ORDERED that the appeal from the order dated May 2, 2003, is dismissed as academic.

Contrary to the People's contentions, from his vantage point of “50 yards at the most” away, the arresting officer's alleged observation of the defendant, seated in a parked car at night, smoking something, provided the officer with no basis to approach the defendant's car (see generally People v. McIntosh, 96 N.Y.2d 521, 730 N.Y.S.2d 265, 755 N.E.2d 329;  People v. Hollman, 79 N.Y.2d 181, 581 N.Y.S.2d 619, 590 N.E.2d 204;  People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562).  “In determining the legality of an encounter under De Bour and Hollman, it has been crucial whether a nexus to conduct existed, that is, whether the police were aware of or observed conduct which provided a particularized reason to request information.   The fact that an encounter occurred in a high crime vicinity, without more, has not passed De Bour and Hollman scrutiny” (People v. McIntosh, supra at 526-527, 730 N.Y.S.2d 265, 755 N.E.2d 329).   Here, the officer had no objective, credible reason to approach the car.   His testimony that he could discern, based upon the “dim[ness]” and long duration of the “glow” of the item being smoked, that it was a marijuana cigarette and not a tobacco cigarette, was incredible as a matter of law, and tailored to overcome constitutional objections (see People v. Lewis, 195 A.D.2d 523, 523-524, 600 N.Y.S.2d 272;  People v. Lebron, 184 A.D.2d 784, 787, 585 N.Y.S.2d 498;  People v. Miret-Gonzalez, 159 A.D.2d 647, 649-650, 552 N.Y.S.2d 958).   Accordingly, the Supreme Court properly granted that branch of the defendant's omnibus motion which was to suppress evidence seized from the car.

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