SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

984 

KA 13-00893 

PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND TROUTMAN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

KAAZIM F. FREEMAN, DEFENDANT-APPELLANT.

 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, KELLOGG, HUBER,

HANSEN, TODD, EVANS & FIGEL, PLLC, WASHINGTON, D.C. (THOMAS B. BENNETT

OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Monroe County Court (Douglas A.

Randall, J.), rendered March 12, 2013. 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 the judgment so appealed from is

unanimously reversed on the law, the plea is vacated, those parts of

the omnibus motion seeking to suppress tangible property and

statements are granted, the indictment is dismissed, and the matter is

remitted to Monroe 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 drugs and statements

obtained by the police after defendant was stopped for riding a

bicycle at night without a light in violation of Vehicle and Traffic

Law § 1236 (a). We agree with defendant that, following the

permissible stop of defendant on his bicycle, the officers improperly

escalated the encounter to a level two common-law inquiry by asking

defendant why he was so nervous and whether he was carrying drugs. 

The officers’ inquiries, which involved “invasive questioning” that

was “focuse[d] on the possible criminality” of defendant (People v

Hollman, 79 NY2d 181, 191), were not supported by the requisite

founded suspicion of criminality (see People v Garcia, 20 NY3d 317,

324; People v Hightower, 136 AD3d 1396, 1397; see generally People v

Dealmeida, 124 AD3d 1405, 1407). The testimony at the suppression

hearing establishes that the officers observed nothing indicative of

criminality, and we conclude that defendant’s nervousness upon being

confronted by the police did not give rise to a founded suspicion that
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KA 13-00893 

criminal activity was afoot (see Garcia, 20 NY3d at 324; Hightower,

136 AD3d at 1397; see generally Dealmeida, 124 AD3d at 1407). Because

defendant’s inculpatory oral response to the impermissible accusatory

questioning resulted in the seizure of the drugs from defendant’s

pocket and a postarrest written statement from defendant, the drugs

and the oral and written statements must be suppressed (see generally

Hightower, 136 AD3d at 1397)

In light of our determination that the court should have granted

those parts of defendant’s omnibus motion seeking to suppress the

drugs and statements, defendant’s guilty plea must be vacated (see

id.). In addition, because our determination results in the

suppression of all evidence in support of the crimes charged, we

conclude that the indictment must be dismissed (see id.).

Entered: November 18, 2016 Frances E. Cafarell

Clerk of the Court