May 15, 2013
The People of the State of New York, appellant,
Robert Larmond, respondent. Ind. No. 528/11
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Edward D. Stanislaw of counsel), for appellant.
Lynn W. L. Fahey, New York, N.Y. (Anna Pervukhin of counsel), for respondent.
RANDALL T. ENG, P.J. REINALDO E. RIVERA DANIEL D. ANGIOLILLO RUTH C. BALKIN, JJ.
DECISION & ORDER
Appeal by the People from an order of the Supreme Court, Queens County (Paynter, J.), dated November 10, 2011, which granted that branch of the defendant's omnibus motion which was to suppress certain physical evidence and his statement to law enforcement officials.
ORDERED that the order is affirmed.
The Supreme Court properly determined that the arresting officers lacked an objective, credible reason for approaching the defendant and two other men, who were standing on the street at 6:00 p.m., to ask them what they were doing (see People v Hollman, 79 N.Y.2d 181, 184; People v De Bour, 40 N.Y.2d 210, 223; People v Miles, 82 A.D.3d 1010, 1010-1011). The officer who testified at the suppression hearing failed to articulate any reason for approaching the three men, other than that they were standing in the roadway on a dead-end street while talking and making unspecified hand gestures, and there was no evidence that the men were obstructing traffic. This, standing alone, did not constitute a sufficient basis for the officers to approach the men and request information (see People v McIntosh, 96 N.Y.2d 521, 527; Matter of Michael F., 84 A.D.3d 468; People v Miles, 82 A.D.3d at 1010-1011; cf. People v Hollman, 79 N.Y.2d 181; People v De Bour, 40 N.Y.2d 210; People v Pearson, 59 A.D.3d 743, 744; People v Moyaho, 12 A.D.3d 692, 693). Accordingly, the physical evidence seized and the statement made by the defendant were properly suppressed.
ENG, P.J., RIVERA, ANGIOLILLO and BALKIN, JJ., concur.