Opinion
8686 Ind. 2533/15
03-14-2019
The PEOPLE of the State of New York, Respondent, v. Jesus PEREZ, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society (David Crow of counsel), and Davis Polk & Wardwell LLP, New York (Lindsay Schare of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Patricia Curran of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society (David Crow of counsel), and Davis Polk & Wardwell LLP, New York (Lindsay Schare of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Patricia Curran of counsel), for respondent.
Acosta, P.J., Manzanet–Daniels, Kapnick, Kahn, Oing, JJ.
Judgment, Supreme Court, New York County (Arlene D. Goldberg, J.), rendered March 24, 2016, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender previously convicted of a violent felony, to a term of six years, unanimously reversed, on the law and the facts, defendant's motion to suppress physical evidence and identification testimony granted, and the matter remanded for a new trial preceded by an independent source hearing.
The hearing court expressly determined that the police detention of defendant was supported by reasonable suspicion, but that probable cause did not exist until the undercover officer who allegedly bought drugs from defendant made an identification. Because the record provides no reason for the officers to have concluded that defendant, a suspect in a street drug sale, was armed or dangerous, or likely to resist arrest or flee, handcuffing him was inconsistent with an investigatory detention and elevated the intrusion to an arrest not based on probable cause (see People v. Steinbergin, 159 A.D.3d 591, 73 N.Y.S.3d 547 [1st Dept. 2018] ; People v. Blanding, 116 A.D.3d 498, 983 N.Y.S.2d 266 [1st Dept. 2014] ; People v. Acevedo, 179 A.D.2d 465, 465–466, 577 N.Y.S.2d 864 [1st Dept. 1992], lv denied 79 N.Y.2d 996, 584 N.Y.S.2d 451, 594 N.E.2d 945 [1992] ). Accordingly, the undercover officer's identification of defendant and the buy money recovered as a result of the unlawful arrest should have been suppressed, and defendant is entitled to a new trial preceded by an independent source hearing (see People v. Burts, 78 N.Y.2d 20, 23–24, 571 N.Y.S.2d 418, 574 N.E.2d 1024 [1991] ).
Because we are ordering a new trial, we find it unnecessary to reach any other issues.