ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF
COUNSEL), FOR DEFENDANT-APPELLANT.
DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KELLY CHRISTINE
WOLFORD OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN,
from a judgment of the Supreme Court, Monroe County (Judith
A. Sinclair, J.), rendered August 16. 2016. The judgment
convicted defendant, upon his plea of guilty, of criminal
possession of a weapon in the second degree.
hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, the plea is vacated, that
part of the omnibus motion seeking to suppress physical
evidence is granted, the indictment is dismissed and the
matter is remitted to Supreme Court, Monroe County, for
proceedings pursuant to CPL 470.45.
On appeal from a judgment convicting him upon a plea of
guilty of criminal possession of a weapon in the second
degree (Penal Law § 265.03 ), defendant contends that
Supreme Court (Piampiano, J.) erred in refusing to suppress
physical evidence seized from his person and a vehicle in
which he had been located. As the People correctly concede,
the court erred in refusing to suppress the evidence.
respect to the marihuana seized from defendant's pocket,
we agree with defendant that the police officer lacked any
basis upon which to search defendant's person. The police
officer observed defendant sitting inside a parked vehicle
lacking a valid inspection. The officer approached the
vehicle and, upon seeing a kitchen knife on the floorboard of
the vehicle, asked defendant to exit the vehicle. Without any
further provocation from defendant, the officer conducted a
search of defendant's person, discovering a small amount
of marihuana in defendant's pocket. That search was
unlawful for a variety of reasons.
the search cannot be justified as a frisk for officer safety
inasmuch as there was no evidence that, after defendant
exited the vehicle, the officer "reasonably suspected
that defendant was armed and posed a threat to [the
officer's] safety" (People v Fagan, 98
A.D.3d 1270, 1271 [4th Dept 2012], lv denied 20
N.Y.3d 1061 , cert denied ___ U.S. ___, 134
S.Ct. 262 ; see People v Lipscomb, 179 A.D.2d
1043, 1044 [4th Dept 1992]; cf. People v Carter, 109
A.D.3d 1188, 1189 [4th Dept 2013], lv denied 22
N.Y.3d 1087 ). Second, even assuming, arguendo, that
the officer was entitled to conduct a protective frisk, we
conclude that he was not entitled to search defendant's
pockets. "A protective frisk is an intrusion tailored to
discover the presence of concealed weapons, usually
consisting of a pat-down of a person's outer clothing...
[It] should not be extended beyond its purpose of securing
the safety of the officer and preventing an escape'
" (Lipscomb, 179 A.D.2d at 1044, quoting
People v Marsh, 20 N.Y.2d 98, 101 ). Where, as
here, there is no evidence that the officer believed that the
individual's pockets contained weapons, the search of
those pockets is unlawful (see People v Diaz, 81
N.Y.2d 106, 109 ; People v Williams, 217
A.D.2d 1007, 1007-1008 [4th Dept 1995]; Lipscomb,
179 A.D.2d at 1044).
suppression hearing, the officer justified his search of
defendant's person and pockets on the ground that he was
going to be placing defendant in the police vehicle and he
searched "everybody" and "anybody" that
was going to be placed inside his vehicle. The officer's
position lacks merit. "Although a police officer may
reasonably pat down a person before he [or she] places [that
person] in the back of a police vehicle, the legitimacy of
that procedure depends on the legitimacy of placing [the
person] in the police car in the first place"
(People v Kinsella, 139 A.D.2d 909, 911 [4th Dept
1988]; see People v Richards, 151 A.D.3d 1717, 1719
[4th Dept 2017]). Here, as in Richards, the People
failed to establish the legitimacy of placing defendant in
the patrol vehicle. The officer lacked any suspicion, let
alone a reasonable one, "that a crime ha[d] been, [was]
being, or [was] about to be committed" (People v
Martinez, 80 N.Y.2d 444, 447 ). At most, the
evidence established that the unidentified owner of the
vehicle had committed a parking violation (Vehicle
and Traffic Law § 306 [b]).
is no question... that a police officer is not authorized to
conduct a search every time he [or she] stops a motorist for
speeding or some other ordinary traffic infraction"
(Marsh, 20 N.Y.2d at 100) and, "without more[,
] a mere custodial arrest for a traffic offense will not
sustain a contemporaneous search of the person"
(People v Weintraub, 35 N.Y.2d 351, 353 ,
citing People v Adams, 32 N.Y.2d 451, 455  and
Marsh, 20 N.Y.2d at 101-102; cf. People v
Troiano, 35 N.Y.2d 476, 478 ). If such conduct is
not authorized for a traffic offense, then it cannot be
authorized for the lesser offense of a parking violation.
likewise agree with defendant that the court erred in
refusing to suppress the physical evidence found inside the
uninspected vehicle inasmuch as the People failed to
establish that the purported inventory search was valid
(see People v Johnson, 1 N.Y.3d 252, 255-257
). Even if we were to conclude that the uninspected
vehicle could be impounded and subjected to an inventory
search, a questionable proposition at best, the People failed
to establish the existence of any departmental policy
concerning inventory searches or that the officer properly
conducted the search in compliance with established and
standardized procedures (see id. at 256; see
also People v Gomez, 13 N.Y.3d 6, 10-11 ).
light of our conclusion that the court should have granted
those parts of defendant's omnibus motion seeking to
suppress the physical evidence obtained as a result of the
illegal search of defendant's person and the uninspected
vehicle, defendant's guilty plea must be vacated (see
People v Stock, 57 A.D.3d 1424, 1425 [4th Dept 2008]).
Further, because our conclusion results in the ...