SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

488 

KA 12-00534 

PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND MARTOCHE, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

ADAM PURDY, DEFENDANT-APPELLANT. 

 

ROBERT TUCKER, PALMYRA, FOR DEFENDANT-APPELLANT.

ADAM PURDY, DEFENDANT-APPELLANT PRO SE.

RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (WENDY EVANS LEHMANN OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Wayne County Court (Dennis M.

Kehoe, J.), rendered January 25, 2012. The judgment convicted

defendant, upon a jury verdict, of burglary in the second degree,

grand larceny in the second degree and criminal possession of stolen

property in the second degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the law by reversing those parts convicting

defendant of burglary in the second degree and grand larceny in the

second degree, granting the omnibus motion insofar as it sought to

suppress the statements made by defendant and the physical evidence

seized from his vehicle and vacating the sentence imposed for criminal

possession of stolen property in the second degree, and as modified

the judgment is affirmed, a new trial is granted on counts one and two

of the indictment, and the matter is remitted to Wayne County Court

for resentencing on count three of the indictment. 

Memorandum: Defendant appeals from a judgment convicting him

following a jury trial of burglary in the second degree (Penal Law §

140.25 [2]), grand larceny in the second degree (§ 155.40 [1]) and

criminal possession of stolen property (CPSP) in the second degree (§

165.52). We reject defendant’s contention in his pro se supplemental

brief that the conviction is not supported by legally sufficient

evidence (see generally People v Bleakley, 69 NY2d 490, 495) and,

viewing the evidence in light of the elements of the crimes as charged

to the jury (see People v Danielson, 9 NY3d 342, 349), we further

conclude that the verdict is not against the weight of the evidence

(see generally Bleakley, 69 NY2d at 495). 

We agree with defendant, however, that County Court erred in

denying that part of his omnibus motion seeking suppression of the
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KA 12-00534 

physical evidence that was seized from his vehicle and the statements

he made to New York State Police Investigators, inasmuch as the People

failed to meet their “burden of going forward to show the legality of

the police conduct in the first instance” (People v Di Stefano, 38

NY2d 640, 652; see People v Riddick, 70 AD3d 1421, 1423, lv denied 14

NY3d 844). 

At the suppression hearing, the People presented testimony from

two investigators who came into contact with defendant after he had

been taken into custody. Only one of those investigators testified to

any events that occurred before defendant was taken into custody. 

That investigator testified that he was involved in the investigation

of a residential burglary and that, as a result of his investigation

and his interviews with witnesses and other suspects, he was “actively

looking for [defendant].” Despite the fact that, “[a]s a general

rule, hearsay is admissible at a suppression hearing” (People v

Edwards, 95 NY2d 486, 491; see CPL 710.60 [4]; United States v

Raddatz, 447 US 667, 679, reh denied 448 US 916; People v Brink, 31

AD3d 1139, 1140, lv denied 7 NY3d 865), here the People failed to

present any testimony at the suppression hearing concerning what the

investigator had actually learned from his investigation and

interviews, i.e., what evidence established that defendant was

potentially involved in the crimes. Inasmuch as there is no dispute

that defendant was in custody, the People were required to establish

that the investigators who took defendant into custody had, at the

very least, “a reasonable suspicion that [defendant] ha[d] committed,

[was] committing or [was] about to commit a felony or misdemeanor”

(People v De Bour, 40 NY2d 210, 223; see CPL 140.50 [1]). Even

assuming, arguendo, that it was established at trial that the

investigators had the requisite reasonable suspicion to forcibly

detain defendant, we note that our review of a “court’s suppression

ruling is ‘limited to the evidence presented at the suppression

hearing’ ” (People v Colligan, 52 AD3d 1209, 1210; see People v

Jennings, 295 AD2d 1000, 1000, lv denied 99 NY2d 536).

Because the People failed to present evidence at the suppression

hearing establishing the legality of the police conduct, defendant’s

purported consent to the search of his vehicle was involuntary and all

evidence seized from the vehicle as a result of that consent should

have been suppressed (see People v Packer, 49 AD3d 184, 187-189, affd

10 NY3d 915; People v Banks, 85 NY2d 558, 563, cert denied 516 US 868;

see generally People v Gonzalez, 39 NY2d 122, 128). Additionally,

defendant’s statements to the police must be suppressed as fruit of

the poisonous tree (see People v Garcia, 85 AD3d 28, 34, mod on other

grounds 20 NY3d 317; People v Cady, 103 AD3d 1155, 1157; People v

Beckett, 88 AD3d 898, 900; Riddick, 70 AD3d at 1424). 

The People contend that any error in the suppression ruling is

harmless. We agree with the People only in part. Where, as here, the

error is constitutional in nature, the People must establish “that

there is no reasonable possibility that the error might have

contributed to defendant’s conviction and that it was thus harmless

beyond a reasonable doubt” (People v Crimmins, 36 NY2d 230, 237). 

With respect to the burglary and grand larceny counts, we conclude
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KA 12-00534 

that the error is not harmless. Aside from defendant’s statements,

there was no direct evidence that defendant participated in the

burglary and larceny. An accomplice who became involved after the

burglary was committed testified only that, on the morning of the

burglary, defendant borrowed a “dolly,” and that, later that

afternoon, defendant and another person arrived at the accomplice’s

house with a 500-pound safe. At that point, the three men acted

together to break open the safe and split the proceeds. Because the

admissible evidence of guilt on the burglary and grand larceny charges

is not overwhelming, we conclude that there is a reasonable

possibility that the error in admitting the evidence seized from

defendant’s vehicle and defendant’s statements to the police may have

contributed to defendant’s conviction. We therefore modify the

judgment by reversing those parts convicting defendant of burglary in

the second degree and grand larceny in the second degree and granting

the omnibus motion insofar as it sought to suppress the statements

made by defendant and the physical evidence seized from his vehicle,

and we grant a new trial on those counts.

We reach a different conclusion, however, with respect to the

count of CPSP. The admissible evidence at trial established that

defendant worked with two other men to open the safe and take

possession of the $405,000 contained therein. Most of that money was

in the form of bills in the amounts of $10 and $20. That same day,

defendant was captured on security video in the act of buying two

safes, one of which was taken by defendant’s mother to his aunt’s

house. Defendant’s aunt surrendered that safe to the police and, when

that safe was opened, it contained over $79,000. Furthermore, within

days of the burglary, defendant, accompanied on one occasion by his

mother, purchased two separate vehicles in cash, using only bills in

the amount of $20. The evidence of guilt is overwhelming, and there

is no reasonable possibility that the erroneous admission of

defendant’s statement and the evidence taken from his vehicle

contributed to his conviction of CPSP in the second degree (see id.). 

The People correctly concede that the certificate of conviction

incorrectly states that defendant was sentenced as a persistent

violent felony offender and that it should be corrected. While the

People contended that the sentence should remain as imposed, we

conclude that the sentence for CPSP in the second degree, the only

conviction remaining, must be vacated. The sentencing transcript

establishes that, although the court found defendant to be a

persistent felony offender (see Penal Law § 70.10 [1]), it declined to

sentence him as such (see § 70.10 [2]). The sentence of an

indeterminate term of incarceration of 5 to 10 years imposed on the

conviction of CPSP in the second degree, a class C nonviolent felony,

is only legal, however, if the court sentenced defendant as a second

felony offender (see §§ 70.00 [2] [c]; [3] [b]; 70.06 [3] [c]; [4]

[b]). At no time did the court state that it was sentencing defendant

as a second felony offender. We therefore further modify the judgment

by vacating the sentence imposed for CPSP in the second degree, and we 
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KA 12-00534 

remit the matter to County Court for resentencing on that count. 

Entered: May 3, 2013 Frances E. Cafarell

Clerk of the Court