Opinion
No. 184 SSM 17.
Decided June 25, 2008.
APPEAL, by permission of a Justice of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered January 29, 2008. The Appellate Division, with two Justices dissenting, (1) reversed, on the law, a judgment of the Supreme Court, New York County (Robert H. Straus, J., at suppression hearing; Ruth Pickholz, J., at plea and sentence), which had convicted defendant, upon a jury verdict, of attempted criminal possession of a weapon in the third degree, (2) granted defendant's suppression motion, and (3) dismissed the indictment.
At a hearing on defendant's motion to suppress, there was evidence that the police stopped an automobile in which defendant was a passenger and subjected defendant to a frisk, subsequently conceded by the People to have been illegal; that after that search revealed a small knife the police asked for identification and defendant consented to an officer looking in defendant's backpack; and that a search of the backpack revealed a second, larger knife, which defendant was charged with possessing.
The Appellate Division concluded that the People were unable to show that defendant's consent to the search of the backpack was voluntary in the context of a benign request for identification or was acquired by means sufficiently attenuated from the prior illegality to be purged of its taint to avoid suppression of the second knife.
People v Packer, 49 AD3d 184, affirmed.
Robert M. Morgenthau, District Attorney, New York City ( Eric Rosen and Sheryl Feldman of counsel), for appellant.
Legal Aid Society, New York City ( Ellen Dille of counsel), for respondent.
Before: Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed.
The court's determination — that defendant's consent was involuntarily given because it was insufficiently distinguishable from the illegal frisk — finds record support. The People's contention that the court applied an erroneous legal standard is unavailing.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, in a memorandum.