SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

680 

KA 09-00087 

PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, GORSKI, AND MARTOCHE, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

SEAN M. AYERS, DEFENDANT-APPELLANT. 

 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF

COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (KELLY CHRISTINE

WOLFORD OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Monroe County Court (Alex R. Renzi,

J.), rendered November 19, 2008. The judgment convicted defendant,

upon his plea of guilty, of criminal possession of a weapon in the

second degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously reversed on the law, the plea is vacated, that part of the

omnibus motion seeking to suppress evidence is granted, and the matter

is remitted to Monroe County Court for further proceedings on the

indictment. 

Memorandum: On appeal 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]), defendant contends that his arrest was not

supported by probable cause. We agree. At approximately 3:19 A.M. on

a winter day, the police responded to the report of an attempted

burglary by a homeowner who had discovered the door of his back porch

ajar and one fresh snow footprint inside the house. The homeowner

also reported that his wife’s vehicle had been opened. One to two

inches of snow had fallen early that morning. The first officer to

respond began following a footprint trail in the fresh snow, leading

away from the house. The officer reported the direction of the

footprint trail to two other officers who were in patrol vehicles,

canvassing the neighborhood for a suspect. Approximately one hour

after the attempted burglary occurred, one of the officers in a patrol

vehicle observed defendant running across the street and up the

driveway of a house in proximity to the location of the attempted

burglary. The officer got out of his vehicle and instructed defendant

to stop. The officer then approached defendant and placed him under

arrest, and defendant was immediately handcuffed. When defendant

asked the officer why he had been arrested, the officer responded,

“for breaking into cars.” Defendant was pat-searched, and a stolen
-2- 680 

KA 09-00087 

credit card was found in one of his pockets. In addition, a rifle was

found during an inventory search of defendant’s vehicle, which was

located on the same street as the house at which the attempted

burglary took place. 

Later that morning at the jail, defendant waived his Miranda

rights and gave a written statement to the police, apologizing for his

crime. Subsequently, while in jail on the present charges, defendant

made telephone calls to his girlfriend, which were monitored by the

police. The police used the information from those telephone

conversations to obtain evidence that defendant possessed weapons. 

Defendant was indicted on 12 counts, three of which included criminal

possession of a weapon.

It is undisputed that defendant was arrested immediately upon his

encounter with the police. The arresting officer so acknowledged, and

we conclude based on the record before us that a reasonable person in

defendant’s position would have believed that, under all of the

circumstances, he or she was under arrest (see People v Yukl, 25 NY2d

585, 589, cert denied 400 US 851). The police, however, lacked

probable cause to arrest defendant (see People v Russell, 269 AD2d

771). The officer who arrested defendant had observed him running on

the same street where the reported attempted burglary occurred,

sometime between 3:30 A.M. and 4:30 A.M. Although those facts tied

defendant to the crime that was being investigated, they justified, at

most, a stop based on reasonable suspicion, not an arrest requiring

probable cause (see People v De Bour, 40 NY2d 210, 222-223). 

Furthermore, “the police cannot rely on evidence obtained after an

arrest to provide probable cause” (People v Young, 202 AD2d 1024,

1026; see People v Williams, 191 AD2d 989, lv denied 82 NY2d 729).

We further conclude that the police obtained additional evidence

against defendant that flowed directly from defendant’s illegal

arrest, and it cannot be said that such evidence was “sufficiently

attenuated from the illegal arrest to be purged of the taint created

by the illegality” (Russell, 269 AD2d at 772). Thus, the court erred

in refusing to suppress the evidence obtained as a result of

defendant’s illegal arrest as fruit of the poisonous tree (see

generally People v Christianson, 57 AD3d 1385, 1388; People v Parris,

136 AD2d 882, 883-884, appeal dismissed 71 NY2d 1031). “ ‘[I]nasmuch

as the erroneous suppression ruling may have affected defendant’s

decision to plead guilty’ ” (People v Glanton, 72 AD3d 1536, 1537-

1538), the plea must be vacated. 

Entered: June 10, 2011 Patricia L. Morgan

Clerk of the Court