People v. Lopez

• Decision Date: 28 April 2017
• Parties: The PEOPLE of the State of New York, Respondent, v. Pablo W. LOPEZ, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

149 A.D.3d 1545
54 N.Y.S.3d 789

The PEOPLE of the State of New York, Respondent,
v.
Pablo W. LOPEZ, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

April 28, 2017.

54 N.Y.S.3d 790

Easton Thompson Kasperek Shiffrin LLP, Rochester (Brian Shiffrin of Counsel), for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Daniel Gross of Counsel), for Respondent.

PRESENT: WHALEN, P.J., SMITH, CENTRA, TROUTMAN, AND SCUDDER, JJ.

MEMORANDUM:

On appeal from a judgment convicting him upon a jury verdict of two counts of criminal possession of a weapon in the second degree, defendant contends that Supreme Court erred in denying his motion to suppress two semi-automatic pistols recovered by Rochester police officers following the stop and subsequent chase of defendant's vehicle. We agree.

The evidence at the suppression hearing established that police officers responded to two calls, approximately an hour apart, concerning an address on North Goodman Street. The first call was for "family trouble," and the second was for "shots fired." The complainant provided a detailed description of the suspect in both incidents, her children's father, which was broadcast by the police dispatcher following the second incident. The suspect was described as an Hispanic male, five foot seven, with tattoos on his neck and arms, dark clothing, including a Yankees baseball cap, and crossed, "Asian-type" eyes. Approximately half an hour after the second call, an officer spotted an Hispanic man with tattoos on his neck and arms walking on North Goodman Street. Although there were several police cars at the scene, the

54 N.Y.S.3d 791

man "had ... a straight ahead stare, would not look towards [the officer], would not look at any of the police cars sitting on the street, just walked ahead and looked straight ahead." After the man passed him, the officer observed him get into the rear seat of a vehicle, which proceeded in the officer's direction. The officer stopped the vehicle and, when he looked inside, he saw that "the front seat passenger was a male Hispanic with tattoos on his neck, and he also had Asian style eyes which were also crossed." The front seat passenger, who turned out to be the suspect involved in the two incidents, also had a handgun in his waistband. The officer drew his service weapon and instructed defendant, the driver, to turn the car off. Defendant did not comply, but instead drove away with several police cars in pursuit. After a short chase, defendant stopped his vehicle and the occupants were arrested. The rear seat passenger was wearing a white T–shirt and pajama pants. Officers thereafter recovered two pistols on the route taken by defendant. The court denied defendant's motion to suppress the handguns, concluding that the officer was justified in stopping defendant's vehicle.

"Although the determination of the suppression court is entitled to great weight (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ), we have the fact-finding authority to determine whether the police conduct was justified (see People v. McRay, 51 N.Y.2d 594, 605, 435 N.Y.S.2d 679, 416 N.E.2d 1015 [1980] )" (People v. Noah, 107 A.D.3d 1411, 1412, 967 N.Y.S.2d 307 ), and we conclude that the weapons should have been suppressed as the fruit of an illegal stop. The necessary predicate for the stop of defendant's vehicle was "at least a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime" (People v. Spencer, 84 N.Y.2d 749, 753, 622 N.Y.S.2d 483, 646 N.E.2d 785, cert. denied 516 U.S. 905, 116 S.Ct. 271, 133 L.Ed.2d 192 ; see People v. Brooks, 266 A.D.2d 864, 864, 697 N.Y.S.2d 804 ). Here, the stop was premised upon the...