People v. Shuler

• Decision Date: 22 August 2012
• Citation: 949 N.Y.S.2d 758,2012 N.Y. Slip Op. 06040,98 A.D.3d 695
• Parties: The PEOPLE, etc., respondent, v. Audry J. SHULER III, appellant.
• Court: New York Supreme Court — Appellate Division

98 A.D.3d 695
949 N.Y.S.2d 758
2012 N.Y. Slip Op. 06040

The PEOPLE, etc., respondent,
v.
Audry J. SHULER III, appellant.

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

Aug. 22, 2012.

[949 N.Y.S.2d 759]

Thomas N.N. Angell, Poughkeepsie, N.Y. (Steven Levine of counsel), for appellant.

RUTH C. BALKIN, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.

[98 A.D.3d 695]Appeal by the defendant from a judgment of the County Court, Dutchess County (Greller, J.), rendered March 31, 2011, convicting him of criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing (Hayes, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is reversed, on the law, the defendant's plea is vacated, that branch of the defendant's omnibus motion which was to suppress physical evidence is granted, the indictment is dismissed, and the matter is remitted to the County Court, Dutchess County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.

In the early afternoon of April 8, 2010, police officers in Poughkeepsie responded to a report of an “active prostitution” involving two white people behind a certain building. When the police arrived at the scene, they found the defendant, a black man, using a screwdriver to pry the lock off of a bicycle. The defendant complied with an officer's order to put the screwdriver down, and, in response to the officer's question, said he was fixing the bicycle for a friend who lived in the building. He did not, however, know the friend's name. The police believed that the defendant had been trying to steal the bicycle, and they decided to search him for their own safety before investigating further. The defendant gave no indication that he intended to harm the officers, but he appeared nervous, was scanning the fence line, did not make eye contact with the officers and raised his hands only part way when the police ordered him to raise his hands above his head so as to permit them to frisk him. The police saw a bulge in the defendant's pocket that appeared to be a hard ball, and, upon removing it from the defendant's pocket, [98 A.D.3d 696]found that it was a tightly wound bundle of 110 bags of crack cocaine.

A police officer may forcibly stop and detain a person when the officer reasonably suspects that that person has committed, is committing, or is about to commit a felony or misdemeanor ( see People v. Benjamin, 51 N.Y.2d 267, 270, 434 N.Y.S.2d 144, 414 N.E.2d 645;

[949 N.Y.S.2d 760]

People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562;People v. Davenport, 92 A.D.3d 689, 690, 939 N.Y.S.2d 473;People v....