Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), rendered October 5, 2005.
Appellate Division, Fourth Department
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.
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.
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 ). 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 ).
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 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 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 ...