Opinion
08-12-2015
The PEOPLE, etc., appellant, v. Devon J. FLAVIUS, respondent.
David M. Hoovler, Middletown, N.Y. (Andrew R. Kass of counsel), for appellant. Silver & Lesser, P.C. (Steven A. Kimmel, Washingtonville, N.Y., of counsel), for respondent.
David M. Hoovler, Middletown, N.Y. (Andrew R. Kass of counsel), for appellant.
Silver & Lesser, P.C. (Steven A. Kimmel, Washingtonville, N.Y., of counsel), for respondent.
Opinion
Appeal by the People from an order of the County Court, Orange County (De Rosa, J.), dated July 17, 2014, which granted that branch of the defendant's omnibus motion which was to suppress physical evidence and his statements to law enforcement officials.
ORDERED that the order is affirmed.
Contrary to the People's contention, the frisk of the defendant by a police officer was not justified, as there was no circumstance to support a reasonable suspicion that the officer was in danger of physical injury (see CPL 140.50 [3 ]; People v. Holmes, 81 N.Y.2d 1056, 1058, 601 N.Y.S.2d 459, 619 N.E.2d 396 ; People v. Martinez, 191 A.D.2d 457, 458–459, 594 N.Y.S.2d 292 ; People v. Terrell, 185 A.D.2d 906, 907–908, 587 N.Y.S.2d 8 ; cf. People v. Batista, 88 N.Y.2d 650, 654–655, 649 N.Y.S.2d 356, 672 N.E.2d 581 ). Therefore, the gun and holster found on the defendant were properly suppressed. The hearing court also properly granted suppression of the defendant's subsequent statement to police as the fruit of the illegal search and seizure (see Wong Sun v. United States, 371 U.S. 471, 484–487, 83 S.Ct. 407, 9 L.Ed.2d 441 ; People v. Milerson, 72 A.D.2d 588, 589, 421 N.Y.S.2d 14, affd. 51 N.Y.2d 919, 434 N.Y.S.2d 980, 415 N.E.2d 968 ; cf. People v. Martinez, 37 N.Y.2d 662, 670–671, 376 N.Y.S.2d 469, 339 N.E.2d 162 ).
LEVENTHAL, J.P., DICKERSON, ROMAN and HINDS–RADIX, JJ., concur.