SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

112 

KA 12-01987 

PRESENT: WHALEN, P.J., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

PHILIP FINCH, DEFENDANT-APPELLANT. 

 

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL

OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Onondaga County Court (Joseph E.

Fahey, J.), rendered August 28, 2012. The judgment convicted

defendant, upon his plea of guilty, of criminal possession of a

controlled substance in the third degree. 

It is hereby ORDERED that said appeal from the judgment insofar

as it imposed sentence is unanimously dismissed and the judgment is

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

motion seeking to suppress physical evidence is granted, the

indictment is dismissed, and the matter is remitted to Onondaga County

Court for proceedings pursuant to CPL 470.45.

Memorandum: On appeal from a judgment convicting him upon his

plea of guilty of criminal possession of a controlled substance in the

third degree (Penal Law § 220.16 [1]), defendant contends that County

Court erred in refusing to suppress physical evidence, i.e., heroin,

found in the vehicle in which he was a passenger and on his person

because the police arrested him without probable cause. We agree.

It is well established that, “[i]n evaluating police conduct, the

court must determine whether the action taken was justified in its

inception and at every subsequent stage of the encounter” (People v

Nicodemus, 247 AD2d 833, 835, lv denied 92 NY2d 858). Here, there is

no dispute that the vehicle was effectively seized when the police

positioned their patrol cars to block the vehicle from backing out and

leaving the parking lot (see People v Layou, 71 AD3d 1382, 1383). 

Contrary to defendant’s contention, however, we conclude that the

seizure was lawful inasmuch as “the totality of the information known

to the police at the time of the stop of [the vehicle] ‘supported a

reasonable suspicion of criminal activity . . . [, i.e.,] that quantum

of knowledge sufficient to induce an ordinarily prudent and cautious

[person] under the circumstances to believe criminal activity is at
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KA 12-01987 

hand’ ” (People v Andrews, 57 AD3d 1428, 1429, lv denied 12 NY3d 850). 

Indeed, the evidence at the suppression hearing established that the

police had reasonable suspicion that at least one occupant of the

vehicle was involved in an earlier violent home invasion burglary in

which the suspects had sought drugs and money, and that said occupant

had attempted to arrange a drug transaction with an investigator at

the location of the seizure (see People v Strahin, 114 AD3d 1284,

1284, lv denied 23 NY3d 968).

We nonetheless agree with defendant that he was unlawfully

arrested without probable cause prior to the police finding packets of

heroin in plain view in the vehicle. Although “[i]t is well

established that not every forcible detention constitutes an arrest”

(People v Drake, 93 AD3d 1158, 1159, lv denied 19 NY3d 1102), we

conclude that defendant was arrested when an officer, with his weapon

drawn, opened the unlocked front seat passenger door of the vehicle,

physically removed defendant, had him lie down on the ground,

handcuffed and searched him, and placed him in a patrol vehicle (see

People v Lee, 110 AD3d 1482, 1484; Nicodemus, 247 AD2d at 835). 

“Under such circumstances, ‘a reasonable [person] innocent of any

crime, would have thought’ that he [or she] was under arrest” (Lee,

110 AD3d at 1484, quoting People v Yukl, 25 NY2d 585, 589, cert denied

400 US 851). Contrary to the People’s contention and the court’s

determination, the officer’s conduct “ ‘went beyond merely ordering

defendant from [the vehicle]. [He] took the additional “protective

measures” of frisking defendant, handcuffing him and placing him in a

police car . . . [S]uch an intrusion amounts to an arrest[,] which

must be supported by probable cause’ ” (People v Williams, 79 AD3d

1653, 1654, affd 17 NY3d 834; see People v Johnson, 102 AD2d 616, 625,

lv denied 63 NY2d 776). Inasmuch as the police lacked probable cause

to arrest defendant before the officer returned to the vehicle and

discovered the packets of heroin, the court should have suppressed

that evidence, as well as the evidence subsequently found on

defendant’s person, as fruit of the poisonous tree (see Lee, 110 AD3d

at 1484). We therefore vacate defendant’s guilty plea, and “ ‘because

our determination results in the suppression of all evidence in

support of the crimes charged, the indictment must be dismissed’ ”

(id.).

Finally, we dismiss the appeal to the extent that defendant

challenges the severity of his sentence (see People v Heatherly, 132

AD3d 1277, 1279). “Defendant has completed serving [his] sentence,

including any period of postrelease supervision, and, therefore, that

part of the appeal is moot” (id.). 

Entered: March 25, 2016 Frances E. Cafarell

Clerk of the Court