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The People of the State of New York v. Michael Mcgrew

February 1, 2013

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
MICHAEL MCGREW,
DEFENDANT-APPELLANT.



Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), rendered June 15, 2009.

People v Mcgrew

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.

Released on February 1, 2013

PRESENT: SCUDDER, P.J., SMITH, FAHEY, AND MARTOCHE, JJ.

The judgment convicted defendant, upon a jury verdict, of criminal possession of a weapon in the second degree and unlawful possession of marihuana.

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, that part of the omnibus motion seeking suppression of physical evidence is granted, the indictment is dismissed, and the matter is remitted to Onondaga County Court for further proceedings pursuant to CPL 470.45.

Memorandum: On appeal from a judgment convicting him following a jury trial of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) and unlawful possession of marihuana (§ 221.05), defendant contends that reversal is warranted because the police officer who stopped both defendant and his co-defendant prior to their arrest lacked the statutory authority to do so. We agree, and conclude that County Court therefore erred in refusing to suppress the physical evidence obtained as a result of that illegal stop.

The subject stop occurred in a college parking lot in the Town of DeWitt at approximately 7:30 p.m. on December 28, 2008. A City of Syracusepolice detective assigned to a security detail for an athletic event at the college saw co-defendant approach the foyer of its gymnasium. According to the detective, co-defendant then turned around and started walking back in the direction from which he came. The detective followed co-defendant in his police car, and observed co-defendant approach a parked sedan. Co-defendant opened the front passenger-side door of the sedan, leaned in, leaned back out, closed the door and proceeded back toward the gymnasium.

At that point, the detective exited his police vehicle and asked to speak to co-defendant, who, according to the detective, smelled of burnt marihuana. Defendant emerged from the car several seconds later and stopped walking when the detective asked to speak with him. The detective then recognized that defendant had bloodshot eyes and also smelled of burnt marihuana, which defendant and co-defendant admitted to having smoked. After his partner arrived on the scene, the detective looked into the car with a flashlight to make sure no one else was in that vehicle. He saw a small baggie containing a leafy substance in the compartment of the driver's side door, which he believed to be marihuana. The detective, who detected an odor of unburned marihuana around the car, then asked co-defendant and defendant for consent to search that vehicle. Consent was granted, and the ensuing search revealed a loaded revolver on the floor in front of the passenger seat. The detective then called the DeWitt police to effect a formal arrest of defendant and co-defendant, and the gun and the marihuana were subsequently seized from the vehicle. The parties thereafter stipulated that the events in question occurred more than 100 yards from the boundary line of the City of Syracuse.

Pursuant to CPL 140.50 (1), "a police officer may [under certain circumstances] stop a person in a public place located within the geographical area of such officer's employment" (emphasis added), the relevant "geographical area" in this case being the City of Syracuse (CPL 1.20 [34-a] [b]). We thus conclude that, under these circumstances, the detective lacked statutory authorization to stop and question defendant in the Town of DeWitt (see People v Howard, 115 AD2d 321, 321; Brewster v City of New York, 111 AD2d 892, 893). Moreover, on these facts, the detective's violation of CPL 140.50 (1) requires suppression of the evidence derived therefrom, i.e., the gun and the marihuana seized from the car (see People v Greene, 9 NY3d 277, 280-281). We thus grant that part of defendant's omnibus motion seeking suppression of that physical evidence, dismiss the indictment, and remit the matter to County Court for further proceedings pursuant to CPL 470.45.

As an alternative ground for reversal, defendant contends that the court abused its discretion in rejecting defense counsel's peremptory challenge to a prospective juror. This contention is properly before us (see CPL 470.05 [2]; cf. People v Buckley, 75 NY2d 843, 846), and we conclude that it too has merit.

At the outset of jury selection, the court told the attorneys for both defendant and co-defendant that they would have a total of 15 peremptory challenges, with seven challenges allocated to defendant and eight to co-defendant. Then, consistent with People v Alston (88 NY2d 519, 524-529), the court determined that the parties could exercise peremptory challenges only to the number of jurors necessary to seat a twelve-person venire. Put differently, the court indicated that the parties would consider prospective jurors in groups of ...


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