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People v. Lopez

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


November 4, 2009

THE PEOPLE, ETC., APPELLANT,
v.
GARRY MICHAEL LOPEZ, RESPONDENT.

Appeal by the People from an order of the Supreme Court, Kings County (Reichbach, J.), dated June 26, 2008, which, after a hearing, granted the defendant's motion to suppress physical evidence.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

STEVEN W. FISHER, J.P., JOSEPH COVELLO, THOMAS A. DICKERSON and PLUMMER E. LOTT, JJ.

(Ind. No. 4838/07)

DECISION & ORDER

ORDERED that the order is affirmed.

The defendant was standing on pegs on the rear of a bicycle ridden by another individual traveling the wrong way on a one-way street. One of three police officers riding together in a patrol car exited the vehicle, displayed his shield, and stated, "Police, don't move." The defendant fled, the officers pursued, and, after a chase, apprehended the defendant and recovered a gun that he had discarded as he ran. Under the circumstances of this case, the officer's ordering the defendant not to move was unlawful, and the defendant's discarding the weapon in the subsequent pursuit was precipitated by the illegality and was not attenuated from it (cf. People v Boodle, 47 NY2d 398, cert denied 444 US 969). Accordingly, the weapon was properly suppressed.

FISHER, J.P., COVELLO, DICKERSON and LOTT, JJ., concur.

20091104

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