Opinion
No. 220 SSM 29.
Decided September 13, 2011.
APPEAL, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from two orders of that Court, entered December 30, 2010. In the first order, the Appellate Division (1) reversed, on the law, a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.), which had convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree, (2) vacated the plea, and (3) remitted the matter to Supreme Court for further proceedings on the indictment. In the second order, the Appellate Division (1) reversed, on the law, a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.), which had convicted defendant, upon a jury verdict, of burglary in the second degree, (2) granted that part of defendant's motion seeking to suppress physical evidence, and (3) granted a new trial.
In a prosecution for burglary, the Appellate Division concluded that money seized from defendant's pocket by a police officer should have been suppressed as the fruit of an unlawful arrest. The Appellate Division found that the record of the suppression hearing established that the police were justified in stopping defendant's vehicle for a speeding violation, and in thereafter asking defendant to produce his license and registration and to exit the vehicle. The Appellate Division also found that the officers took the additional protective measures of frisking defendant, handcuffing him and placing him in a police car. The Appellate Division concluded that such an intrusion amounted to an arrest, and although the police had reports of possibly suspicious behavior, the officers were not at liberty to detain defendant while other officers attempted to determine whether a burglary had in fact been committed, i.e., until evidence establishing probable cause could be found.
People v Williams, 79 AD3d 1648, affirmed.
People v Williams, 79 AD3d 1653, affirmed.
Michael C. Green, District Attorney, Rochester ( Kelly Christine Wolford of counsel), for appellant.
Timothy P. Donaher, Public Defender, Rochester ( Drew R. DuBrin of counsel), for respondent.
Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
OPINION OF THE COURT
MEMORANDUM.
The orders of the Appellate Division should be affirmed.
The reasonableness of a seizure, the existence of probable cause or reasonable suspicion, the classification of a detention as an arrest and the attenuation of evidence from police misconduct are all mixed questions of law and fact that are beyond this Court's review unless there is no record support for the determinations of the court below ( see e.g. People v Wheeler, 2 NY3d 370, 373; People v Brannon, 16 NY3d 596, 602 ; People v Gomcin, 8 NY3d 899, 901; People v Farrell, 59 NY2d 686, 688; People v Divine, 6 NY3d 790, 791). Here, although different conclusions may not have been unreasonable, the record supports the Appellate Division's determination that defendant was arrested without probable cause ( see People v Ryan, 12 NY3d 28, 30-31; cf. People v Hicks, 68 NY2d 234, 240) and that the seizure of evidence from him was neither attenuated from the illegal arrest nor derived from a source that was sufficiently independent of it. Since it is reasonably possible that the introduction of the impermissibly seized evidence affected the verdict, defendant is entitled to vacatur of the conviction and a new trial ( see e.g. People v Crimmins, 36 NY2d 230, 237). An unrelated conviction must be overturned as well because it was premised on a guilty plea for which defendant was promised a sentence that would run concurrently with the punishment imposed in this case ( see People v Fuggazzatto, 62 NY2d 862, 863).
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), orders affirmed in a memorandum.