SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

115 

KA 13-00154 

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

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

DARREN HIGHTOWER, DEFENDANT-APPELLANT. 

 

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CHRISTINE M. COOK OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE

OF COUNSEL), FOR RESPONDENT. 

 

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

Fahey, J.), rendered December 19, 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 the judgment so appealed from is

unanimously 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 obtained by the

police following a stop of the vehicle in which defendant was a

passenger. We agree. At the outset, we note that defendant correctly

concedes that the vehicle was lawfully stopped for having excessively

tinted windows in violation of the Vehicle and Traffic Law (see People

v Estrella, 48 AD3d 1283, 1284, affd 10 NY3d 945, cert denied 555 US

1032). Defendant further correctly concedes that, following the stop

of the vehicle, the officer was entitled to make level one inquiries

concerning defendant’s identity and destination (see People v Dewitt,

295 AD2d 937, 938, lv denied 98 NY2d 709, reconsideration denied 98

NY2d 767; see generally People v De Bour, 40 NY2d 210, 223), and to

direct him to exit the vehicle when the driver admitted that he had no

driver’s license and defendant was unable to produce identification

(see People v Jones, 66 AD3d 1476, 1477, lv denied 13 NY3d 908).

Contrary to the determination of the suppression court, however,

we conclude that the officer’s further escalation of the encounter

exceeded permissible bounds. The officer testified at the suppression
-2- 115 

KA 13-00154 

hearing that, when defendant responded to his level one inquiries,

defendant appeared fidgety, grabbed at his pants pockets, looked

around, and gave illogical and contradictory responses to the

officer’s questions, which prompted the officer to ask defendant

whether he had any weapons or drugs. With that question, the officer

“proceed[ed] to the next level of confrontation, the ‘common-law

inquiry,’ which involves ‘invasive questioning’ focusing on the

‘possible criminality’ of the subject” (People v Tejeda, 217 AD2d 932,

933, quoting People v Hollman, 79 NY2d 181, 191-192). That escalation

was not supported by the requisite founded suspicion of criminality

(see generally De Bour, 40 NY2d at 223). Defendant’s nervousness and

the discrepancies in his explanation of where he was going did not

give rise to a founded suspicion that criminal activity was afoot (see

People v Garcia, 20 NY3d 317, 320; People v Dealmeida, 124 AD3d 1405,

1407). 

Defendant responded to the officer’s level two inquiry by saying,

“you’re harassing me,” and then walking away. The encounter escalated

further to a level three seizure when the officer commanded him to

stop, defendant continued to walk away, and the officer pursued

defendant with a taser (see People v Moore, 93 AD3d 519, 520-521, lv

denied 19 NY3d 865). We reject the People’s contention that

defendant’s conduct provided the officer with the requisite reasonable

suspicion of criminality (see generally De Bour, 40 NY2d at 223). 

“Flight alone is insufficient to justify pursuit because an individual

has a right to be let alone and refuse to respond to police inquiry”

(People v Riddick, 70 AD3d 1421, 1422 [internal quotation marks

omitted], lv denied 14 NY3d 844; see People v Howard, 50 NY2d 583,

590-591, cert denied 449 US 1023). Finally, we conclude that

defendant’s disposal of the bags containing cocaine during the

officer’s pursuit was precipitated by the illegality of that pursuit

(see People v Clermont, 133 AD3d 612, 614). Thus, the court erred in

refusing to suppress the bags of cocaine. 

In light of our determination that the court should have granted

that part of defendant’s omnibus motion seeking to suppress physical

evidence, defendant’s guilty plea must be vacated (see Riddick, 70

AD3d at 1424). In addition, because our determination results in the

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

indictment must be dismissed (see People v Cady, 103 AD3d 1155, 1157). 

We therefore remit the matter to County Court for further proceedings

pursuant to CPL 470.45. 

Entered: February 11, 2016 Frances E. Cafarell

Clerk of the Court