SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

203 

KA 06-00060 

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

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

DOUGLAS E. LEE, DEFENDANT-APPELLANT. 

(APPEAL NO. 1.) 

 

THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR. OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF

COUNSEL), FOR RESPONDENT. 

 

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

J.), rendered October 5, 2005. The judgment convicted defendant, upon

his plea of guilty, of burglary in the second degree. 

It is hereby ORDERED that the judgment so appealed from is

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

seeking to suppress statements made by defendant is granted, and the

matter is remitted to Monroe County Court for further proceedings on

the indictment. 

Memorandum: In appeal No. 1, defendant appeals from a judgment

convicting him, upon his plea of guilty, of burglary in the second

degree (Penal Law § 140.25 [2]). In appeal No. 2, he appeals from a

judgment convicting him, also upon his plea of guilty, of attempted

burglary in the second degree in satisfaction of a separate indictment

(§§ 110.00, 140.25 [2]). 

The conviction in appeal No. 1 arises from defendant’s theft of

two bicycles in the Town of Irondequoit in the early morning hours of

July 16, 2004. Defendant contends that County Court erred in refusing

to suppress the statements that he made to the arresting officer

because, inter alia, he was illegally detained in violation of his

Fourth Amendment rights. We agree with defendant that his statements

should have been suppressed on that ground. We note at the outset,

however, that defendant’s contention is confined solely to the

judgment of conviction in appeal No. 1, and that he raises unrelated

issues in appeal No. 2 that are unaffected by our determination in

appeal No. 1. 

With respect to appeal No. 1, at approximately 6:00 A.M. on the

day in question, the Irondequoit Police Department received a report

of a suspect who was “possibly” stealing bicycles. The report was
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called in by a local Town Justice, who had found a bicycle in his

driveway. In response to the report, a police officer drove to the

residence of the Town Justice, who stated that his newspaper delivery

woman had told him that she encountered a man riding one bicycle while

simultaneously pulling the second bicycle that the Town Justice

discovered was left in his driveway. The delivery woman had described

the man to the Town Justice as a black male wearing a dark hooded

sweatshirt and jeans. 

Upon receiving that information, the officer left the Town

Justice’s residence in search of the suspect. After driving

approximately one block, the officer observed defendant, a black male

wearing a dark hooded sweatshirt and greenish-colored jeans, emerge

from a nearby yard riding a bicycle. Defendant proceeded to ride the

bicycle down the sidewalk, whereupon the officer pulled alongside him

and called out for him to stop. Defendant initially did not comply,

but when the officer yelled a second time for him to stop, defendant

complied. The officer then exited his vehicle and approached

defendant. When asked at the suppression hearing what he initially

said to defendant, the officer responded, “I told him that we had a

report of a suspicious male possibly stealing bikes and that the

description of the male was a male black wearing a darker . . . hooded

sweatshirt and jeans, and as you can see you fit the description, so I

just have to make an inquiry and you’ll be on your way if everything’s

okay.” The officer testified similarly on cross-examination,

explaining that, upon stopping defendant and explaining the reason

therefor, the officer advised defendant that “after everything checks

[out], you’ll be on your way.” The stop occurred at 6:21 A.M. 

The officer proceeded to ask defendant a series of questions,

including his identity, where he lived and what he was doing in the

area. Defendant answered the officer’s questions. When the officer

asked where he had gotten the bike, defendant said that he purchased

it a week earlier from “some dude” for $45. At some point during the

questioning, another police officer arrived at the scene, and that

second officer remained on the sidewalk with defendant while the first

officer at the scene commenced an investigation. The first officer

went to several residences on the street and questioned homeowners to

determine whether their homes or garages had been burglarized. At

6.45 A.M., approximately 24 minutes after defendant was initially

stopped by the police, the newspaper delivery woman, acting on her own

volition, arrived at the scene and identified defendant as the person

she had observed earlier in the morning with two bicycles. Fifteen

minutes later, a third officer arrived with a civilian who identified

the bicycle that defendant was riding as his. Defendant was then

placed under arrest, administered Miranda warnings, and interrogated

by the police. He was ultimately indicted for two counts of burglary

in the second degree, one count of burglary in the third degree, and

three counts of petit larceny. While released on those charges,

defendant committed another burglary, which is the subject of the

indictment in appeal No. 2. 

In its decision denying defendant’s suppression motion, the court

concluded that, before encountering defendant, the information
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possessed by the first officer at the scene was sufficient to support

a founded suspicion that criminal activity was afoot, justifying the

“limited intrusion upon defendant’s freedom of movement” until the

newspaper delivery woman arrived and identified defendant as the

individual she had seen pulling the second bicycle. At that point,

the court determined that the first officer at the scene had

reasonable suspicion to believe that defendant had committed a crime,

justifying defendant’s temporary detention. When the second civilian

arrived and identified the bicycle that defendant had been riding as

his, the officers had probable cause to arrest defendant. 

We agree with defendant that his 24-minute detention following

the stop by the first officer at the scene violated his Fourth

Amendment rights. The court’s determination that the officer had a

“founded suspicion that criminal activity [was] afoot” justified a

common-law inquiry (People v Hollman, 79 NY2d 181, 191), a level two

intrusion under People v De Bour (40 NY2d 210, 223). Pursuant to that

level two intrusion, the officer was “entitled to interfere with

[defendant] to the extent necessary to gain explanatory information”;

he could not, however, forcibly seize defendant (id.). An officer

making a common-law inquiry may detain a suspect temporarily, but only

“to the extent necessary to obtain explanatory information” (People v

Medina, 107 AD2d 302, 304). 

Here, the length of defendant’s detention exceeded that allowed

pursuant to a common-law inquiry when, after first being asked for

identifying information, defendant was held for 24 minutes while the

first officer at the scene went to residences in the neighborhood

searching for evidence of a crime. Once the officer began that

process, defendant’s temporary seizure pursuant to a lawful common-law

inquiry became an investigatory detention, a level three intrusion

necessitating a reasonable suspicion that defendant had committed a

crime (see People v Bruce, 306 AD2d 68, 69, lv denied 100 NY2d 618;

see generally People v Ryan, 12 NY3d 28, 29-31). Significantly, the

suppression court determined that such reasonable suspicion did not

exist until the newspaper delivery woman arrived and identified

defendant, which as noted was 24 minutes after the initial encounter. 

“The police are not at liberty to arrest and hold a suspect while they

search for evidence sufficient to justify their action” (People v

Williams, 191 AD2d 989, 990, lv denied 82 NY2d 729; see People v

Williams, 79 AD3d 1653, 1654, affd 17 NY3d 834 [“The officers were not

at liberty to detain defendant (for 15 to 20 minutes) while other

officers attempted to determine whether a burglary had in fact been

committed, i.e., ‘until evidence establishing probable cause could be

found’ ”]; see also Ryan, 12 NY3d at 30-31 [A detention of

approximately 13 minutes was not authorized, even in the event that

the police had reasonable suspicion warranting a level three

investigatory detention]). 

We would reach the same conclusion even if, as the dissent

suggests, the police did not canvass the neighborhood until after the

newspaper delivery woman arrived. The fact remains that defendant was

detained for 24 minutes in the absence of reasonable suspicion. The

court specifically found that 24 minutes separated defendant’s stop
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and the arrival of the newspaper delivery woman, and the People do not

challenge that finding on appeal. In our view, the 24-minute

detention was unlawful regardless of whether the police were going

door-to-door in search of a crime during that time period. 

We further conclude that a reasonable person in defendant’s

position would not have felt free to leave after the first officer at

the scene told him that, “after everything checks [out]” he would be

“on [his] way” and then handed defendant off to another uniformed

officer while he canvassed the neighborhood in search of a crime

([emphasis added]; see generally People v Hicks, 68 NY2d 234, 239-240;

People v Smith, 234 AD2d 946, 946, lv denied 89 NY2d 1041; People v

McFadden, 179 AD2d 1003, 1004).

We disagree with the dissent’s conclusion that defendant was not

detained while the police officer conducted his investigation. First,

the suppression court specifically found that there was a “temporary

detention” of defendant while the officer conducted a “further

investigation.” Thus, “the hearing court did not deny suppression on

that ground, and since the issue was not determined adversely to

defendant, we may not reach it on appeal” (People v Gerrard, 94 AD3d

592, 593, citing People v Concepcion, 17 NY3d 192, 194-195).

In any event, none of the cases cited by the dissent supports the

conclusion that defendant here was not detained. In neither People v

Anthony (85 AD3d 1634, lv denied 17 NY3d 813) nor People v Ocasio (85

NY2d 982) were the defendants ordered to remain in their places while

the police conducted their investigations. In People v Smith (234

AD2d 946, lv denied 89 NY2d 1041) and People v Yukl (25 NY2d 585, cert

denied 400 US 851), the defendants voluntarily accompanied officers to

police headquarters with no indication that they were not free to

leave. Here, in contrast, the investigating officer twice “yell[ed]”

at defendant to stop riding his bike, and defendant complied with that

order. The officer then told defendant that he could leave only

“after everything checks [out],” which is tantamount to telling

defendant that he could not leave until things did check out. Again,

defendant complied, at which point he was handed off to another

officer while the first officer investigated further. At that point,

defendant could not reasonably “disregard the police and go about his

business” (California v Hodari D., 499 US 621, 628). 

The fact that defendant complied with the officer’s requests does

not mean that he was not detained. In fact, quite the opposite is

true. A police encounter need not be forcible to constitute a seizure

for Fourth Amendment purposes. “ ‘Whenever an individual is

physically or constructively detained by virtue of a significant

interruption of his liberty of movement as a result of police action,

that individual has been seized within the meaning of the Fourth

Amendment . . . This is true whether a person submits to the authority

of the badge or whether he succumbs to force’ ” (People v Howard, 147

AD2d 177, 181, lv dismissed 74 NY2d 943 [emphasis added], quoting

People v Cantor, 36 NY2d 106, 111). “Submission to authority is not

consent nor is a failure to argue with the police officer” (People v

Dingman, 48 AD2d 739, 740). 
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Here, because defendant was twice told to stop and remain at the

scene with a uniformed officer while another officer conducted an

investigation, we conclude that “a reasonable person would have

believed that he was not free to leave” (United States v Mendenhall,

446 US 544, 554; see generally People v Hicks, 68 NY2d 234, 239-240;

People v Smith, 234 AD2d 946, 946, lv denied 89 NY2d 1041; People v

McFadden, 179 AD2d 1003, 1004). Thus, we reverse the judgment in

appeal No. 1, vacate the plea, grant that part of the omnibus motion

of defendant seeking to suppress his statements, and remit the matter

to County Court for further proceedings on the indictment. 

With respect to appeal No. 2, “[t]he knowing, intelligent and

voluntary waiver by defendant of the right to appeal encompasses his

contention that County Court abused its discretion in denying his

request for an adjournment to retain new counsel” (People v Morgan,

275 AD2d 970, lv denied 96 NY2d 761; see People v La Bar, 16 AD3d

1084, 1084-1085, lv denied 5 NY3d 764). In addition, “[b]y failing to

object to the imposition of restitution at sentencing, which was not a

part of the plea agreement, defendant failed to preserve for our

review his contention that County Court erred in enhancing the

sentence by imposing restitution at sentencing without affording him

the opportunity to withdraw the plea” (People v Rhodes, 91 AD3d 1280,

1281; see People v Lewis, 89 AD3d 1485, 1486; People v Lovett, 8 AD3d

1007, 1007-1008, lv denied 3 NY3d 673, 677). We decline to exercise

our power to review that contention as a matter of discretion in the

interest of justice (cf. Rhodes, 91 AD3d at 1281).

All concur except PERADOTTO, J., who dissents and votes to affirm

in the following Memorandum: I respectfully dissent in part because I

disagree with the majority that defendant was illegally detained in

violation of his Fourth Amendment rights. I would therefore affirm

the judgment in appeal No. 1 convicting defendant, upon his plea of

guilty, of burglary in the second degree (Penal Law § 140.25 [2]) but,

like the majority, I would affirm the judgment in appeal No. 2.

In the early morning hours of July 16, 2004, the Irondequoit

Police Department received a telephone call from a local Town Justice

who reported a suspicious male “[p]ossibly stealing bikes.” In

response to the report, a police officer drove to the residence of the

Town Justice, who showed the responding officer a bicycle in his

driveway and told the officer that his newspaper carrier had stopped a

man who was pulling that bicycle while riding another bicycle. The

newspaper carrier suspected that the man, whom she described as a

black male wearing a dark hooded sweatshirt and jeans, might be

stealing bicycles in the area. The officer returned to his patrol car

and began checking the area for the suspect. 

Shortly thereafter, at approximately 6:21 A.M., the officer

observed defendant, a black male wearing a dark hooded sweatshirt and

greenish-colored jeans, emerging from a backyard on a bicycle. The

officer sent a dispatch that he saw a person matching the description

of the possible bicycle thief, and he drove toward defendant. 

Defendant, who had been riding in the street, steered his bicycle onto

the sidewalk. The officer pulled up alongside defendant and asked him
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to stop. Defendant did not comply, possibly because he did not hear

the officer. When the officer repeated his request, defendant

complied. The officer stopped and then exited his patrol car, and

walked over to where defendant was standing on the sidewalk. 

Defendant testified at the suppression hearing that the officer

told him that he “wanted to ask [defendant] a few questions, a couple

questions.” The officer testified that he approached defendant and

“told him that we had a report of a suspicious male possibly stealing

bikes and that the description of the male was a male black wearing a

darker . . . hooded sweatshirt and jeans, and as you can see you fit

the description, so I just have to make an inquiry and you’ll be on

your way if everything’s okay.” On cross-examination, the officer

similarly testified that, when he initially stopped defendant, “I told

him why I stopped him . . . [J]ust to keep him at ease. I told him

after everything checks [out], you’ll be on your way.”

The officer then asked defendant a number of questions, including

his name, whether he owned another bike, where he had been, what he

was doing in the neighborhood, whether he lived in the neighborhood,

and why he had emerged from a backyard. Defendant denied having a

second bicycle. As the officer was questioning defendant on the

sidewalk, the newspaper carrier arrived at the scene and identified

defendant as the person she had observed earlier in the morning with

the two bicycles. The officer testified that the newspaper carrier

arrived “[w]ithin a short time” after he stopped defendant. 

At the suppression hearing, defense counsel extensively

questioned the officer about the timing of the newspaper carrier’s

arrival, noting that a supporting deposition taken by another officer

from the newspaper carrier placed her arrival at 6:45 A.M. Defense

counsel asked the officer whether the supporting deposition would

“refresh [his] memory as to what time [the newspaper carrier] happened

on the scene of the stop,” and the officer replied, “I already told

you it was during the conversation shortly after I stopped him that

she arrived.” When asked whether he had a “specific independent

recollection of the time,” the officer replied, “I do have a very good

recollection that it was shortly after I stopped him . . . While I was

talking to him while I was making my inquiry as to who he is, where

he’s coming from, does he live here, why [did] you come from

somebody’s yard and what’s going on.” The officer’s testimony that

the newspaper carrier arrived shortly after he stopped defendant and

while he was making his initial inquiries of defendant is supported by

defendant’s own testimony at the suppression hearing. Defendant

estimated that “approximately three minutes” elapsed from the time he

was stopped until the time the newspaper carrier arrived. 

After the newspaper carrier identified defendant, the officer

asked defendant why he had lied about having a second bicycle. The

officer then left defendant on the sidewalk with a second officer

while he “check[ed] the houses that [defendant] emerged from, the

yards,” for evidence of a break-in. The first officer testified that

he checked the exterior of three houses and woke up the occupants to

ask if they were okay, a process that he testified took a “short
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time.” Within approximately 15 minutes, a third officer arrived with

a civilian who identified the bicycle that defendant was riding as his

own. At that point, the police placed defendant under arrest and

issued Miranda warnings. During subsequent interrogation, defendant

admitted that he stole the two bicycles in his possession that

morning.

Contrary to the conclusion of the majority, I conclude that the

court properly refused to suppress the statements defendant made to

the arresting officer. It is well established that “[g]reat deference

is afforded the findings of the suppression court” (People v Davis, 48

AD3d 1120, 1122, lv denied 10 NY3d 957; see People v Prochilo, 41 NY2d

759, 761), and that “[t]he suppression court’s credibility

determinations and choice between conflicting inferences to be drawn

from the proof . . . will not be disturbed unless unsupported by the

record” (People v Esquerdo, 71 AD3d 1424, 1424, lv denied 14 NY3d 887

[internal quotation marks omitted]; see People v Sanders, 74 AD3d

1896; People v Youngblood, 294 AD2d 954, 955, lv denied 98 NY2d 704).

In evaluating police conduct, we “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, the suppression court determined that,

when the officer first encountered defendant on the bicycle, the

report from the Town Justice coupled with the officer’s observations

provided a founded suspicion that criminal activity was afoot and thus

justified the second level of intrusion under People v De Bour (40

NY2d 210), i.e., the common-law right of inquiry (see People v Moore,

6 NY3d 496, 498-499; De Bour, 40 NY2d at 223). I agree. The officer

observed defendant, who fit the description of the reported possible

bicycle thief, emerging from a residential backyard on a bicycle

during the early morning hours, shortly after the report and

approximately one block away from the location of the second bicycle. 

The officer was thus permitted to effect “a detention short of a

forcible seizure to obtain explanatory information” (People v White,

35 AD3d 1263, 1264, lv denied 8 NY3d 947, 951; see Moore, 6 NY3d at

500; De Bour, 40 NY2d at 223). The officer therefore was justified in

approaching defendant, asking him to stop, requesting his name, and

asking him various questions about his conduct and the bicycle he was

riding. 

I likewise agree with the suppression court’s further

determination that, when the newspaper carrier arrived and identified

defendant as the individual she had seen pulling the second bicycle,

the officer had reasonable suspicion to believe that defendant had

committed a crime so as to “support the temporary detention of the

defendant for further investigation.” The majority does not take

issue with that determination of the suppression court, but concludes

that defendant was illegally “detained” for 24 minutes following the

stop by the first officer on the scene. I disagree. 

In my view, the facts do not support the majority’s determination

that, “after first being asked for identifying information, defendant
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was held for 24 minutes while the first officer at the scene went to

residences in the neighborhood searching for evidence of a crime.” 

Although the testimony at the suppression hearing is not entirely

clear on this point, it appears that the first officer checked the

surrounding houses for signs of a break-in after the newspaper carrier

identified defendant, i.e., in the 15 minutes between the newspaper

carrier’s arrival on the scene and the civilian’s identification of

the bicycle defendant had been riding. When defense counsel asked the

first officer “[w]hat was the purpose of staying for another 15

minutes or more after [the newspaper carrier] had said that’s the guy

that I took the bike from,” the first officer replied that he was “not

done with [his] check of the yards” or his inquiry as to why defendant

had lied about possessing a second bicycle. 

Notably, defendant stated in support of his suppression motion

that, “[a]fter [the newspaper carrier] identified the defendant as the

person she had seen earlier, the Irondequoit Police Department

conducted a house-to-house canvass of the neighborhood to determine if

anyone had been the victim of a theft” (emphasis added). Moreover,

the suppression court specifically found that the newspaper carrier

arrived during the officer’s initial questioning of defendant. In its

decision, the court stated that, “[w]hile the [first] officer was

obtaining information from the defendant, . . . the newspaper carrier

. . . arrived and identified the defendant as the person she observed

earlier pulling the bike left in [the Town Justice]’s driveway.” 

Thus, according due deference to the suppression court’s findings (see

Prochilo, 41 NY2d at 761; Davis, 48 AD3d at 1122), I submit that the

record does not support the majority’s conclusion that the police

“held” defendant while the first officer canvassed the neighborhood

for evidence of a crime.

In any event, even assuming, arguendo, that the first officer

searched nearby houses prior to the arrival of the newspaper carrier,

I conclude that defendant was not thereby subjected to a level three

forcible detention (see Moore, 6 NY3d at 498-499). The Court of

Appeals has defined “a seizure of the person for constitutional

purposes to be a significant interruption with an individual’s liberty

of movement” (De Bour, 40 NY2d at 216). In People v Ocasio (85 NY2d

982, 984), the Court explained that the determination whether a

seizure occurred “requires the fact finder to apply a settled

standard: whether a reasonable person would have believed, under the

circumstances, that the officer’s conduct was a significant limitation

on his or her freedom . . . .” Such a determination “involves

consideration of all the facts—for example, was there a chase; were

lights, sirens or a loudspeaker used; was the officer’s gun drawn, was

the individual prevented from moving; how many verbal commands were

given; what was the content and tone of the commands; how many

officers were involved; [and] where did the encounter take place”

(id.).

The record reflects that the entire encounter, which did not

exceed 24 minutes, took place on a public sidewalk, and that defendant

was not handcuffed or restrained in any manner (see People v Anthony,

85 AD3d 1634, 1635, lv denied 17 NY3d 813; cf. People v Evans, 294
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AD2d 918, 918-919, lv dismissed 98 NY2d 768). No officer displayed a

weapon, the police did not act in an abusive or threatening manner,

and there was no evidence that the police physically blocked defendant

or otherwise interfered with his freedom of movement (see Ocasio, 85

NY2d at 984; cf. People v Layou, 71 AD3d 1382, 1383). While defendant

was standing on the sidewalk, he consumed a soda and snacks that he

had with him (see People v Smith, 234 AD2d 946, lv denied 89 NY2d

1041). The first officer testified that defendant never asked to

leave or complained that he was treated with disrespect. Concerning

the issue whether defendant was free to leave, the first officer

testified that, “[i]f [defendant] said I’m leaving unless you’re going

to handcuff me . . . [, h]e would have been walking. I already knew

his name.” “Although it may be possible that [defendant] felt obliged

to cooperate with the police in order to maintain his facade of

innocence, this subjective view by the defendant does not require that

we find him to have been in custody” (People v Yukl, 25 NY2d 585, 591-

592, cert denied 400 US 851). 

Finally, I disagree with the majority that a reasonable person in

defendant’s position would not have felt free to leave after the first

officer told defendant that he “just ha[d] to make an inquiry and

you’ll be on your way if everything’s okay” or “after everything

checks [out], you’ll be on your way.” The officer testified that he

made a statement to that effect upon first approaching defendant “just

to keep him at ease” and to explain why he had stopped defendant. 

Defendant did not testify concerning any such statement by the first

officer, recalling only that the first officer approached and told him

that he “wanted to ask [defendant] a few questions, a couple

questions.” In my view, the first officer’s statement, unaccompanied

by any showing of force or other facts suggesting that defendant was

not free to leave, did not elevate the level two encounter to a level

three forcible detention (see People v Lopez, 71 AD3d 1518, 1518-1519,

lv denied 15 NY3d 753; People v Bent, 206 AD2d 926, 926, lv denied 84

NY2d 906).

I would therefore affirm the judgments in appeal Nos. 1 and 2.

Entered: June 15, 2012 Frances E. Cafarell

Clerk of the Court