Opinion
2013-10-4
The PEOPLE of the State of New York, Respondent, v. Willie SYKES, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3] ), criminal possession of a weapon in the third degree (§ 265.02[1] ), unlawful possession of marihuana (§ 221.05), failure to display head lamps (Vehicle and Traffic Law § 375[2][a][1] ), and improper license plates (§ 402[1] ). We agree with defendant that Supreme Court erred in refusing to suppress the gun recovered from the vehicle based upon the inevitable discovery doctrine. The testimony at the suppression hearing established that, during a lawful traffic stop, one of the police officers asked defendant whether there were any drugs or weapons in the vehicle before instructing defendant to exit the vehicle. After defendant admitted to having marihuana on his person, the police officer asked defendant to exit the vehicle and, following suspicious behavior by another occupant of the vehicle, searched the vehicle and found a gun in plain view. Notably, the court did not address whether the officer had the requisite founded suspicion of criminal activity to justify an inquiry concerning the presence of drugs or weapons in the vehicle ( see generally People v. Garcia, 20 N.Y.3d 317, 322–323, 959 N.Y.S.2d 464, 983 N.E.2d 259;People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562). Instead, the court refused to suppress the gun on the ground that the police “could” have taken various actions after the traffic stop that would have inevitably led to the discovery of the gun. The People, however, did not raise the inevitable discovery doctrine as a ground for denying suppression of the gun, nor did they meet their burden of “demonstrat[ing] a very high degree of probability that normal police procedures would have uncovered the challenged evidence independently of [a] tainted source” ( People v. Turriago, 90 N.Y.2d 77, 86, 659 N.Y.S.2d 183, 681 N.E.2d 350,rearg. denied90 N.Y.2d 77, 659 N.Y.S.2d 183, 681 N.E.2d 350 [internal quotation marks omitted]; see People v. Fitzpatrick, 32 N.Y.2d 499, 507, 346 N.Y.S.2d 793, 300 N.E.2d 139,cert. denied414 U.S. 1033, 1050, 94 S.Ct. 462, 554, 38 L.Ed.2d 324, 338;People v. Walker, 198 A.D.2d 785, 787, 605 N.Y.S.2d 726;cf. People v. Watson, 188 A.D.2d 501, 502, 591 N.Y.S.2d 61).
Further, even if a founded suspicion of criminal activity supported the police officer's inquiry ( see Garcia, 20 N.Y.3d at 322–323, 959 N.Y.S.2d 464, 983 N.E.2d 259), we are precluded from affirming with respect to the court's refusal to suppress the gun “on a theory not reached by the suppression court” ( People v. Ingram, 18 N.Y.3d 948, 949, 944 N.Y.S.2d 470, 967 N.E.2d 695;see People v. Concepcion, 17 N.Y.3d 192, 195, 929 N.Y.S.2d 541, 953 N.E.2d 779;People v. LaFontaine, 92 N.Y.2d 470, 473–474, 682 N.Y.S.2d 671, 705 N.E.2d 663,rearg. denied93 N.Y.2d 849, 688 N.Y.S.2d 495, 710 N.E.2d 1094). We therefore hold the case, reserve decision and remit the matter to Supreme Court to determine whether the police officer had a founded suspicion of criminal activity to justify his inquiry ( see generally People v. Coles, 105 A.D.3d 1360, 1363, 966 N.Y.S.2d 288).
It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Supreme Court, Erie County, for further proceedings.