People v. Chann

221 A.D.2d 155, 633 N.Y.S.2d 150, 1995 N.Y. App. Div. LEXIS 10758

Opinion

—Order, Supreme Court, Bronx County (Frank Diaz, J.), entered on or about October 28, 1994, granting defendant’s suppression motion, unanimously affirmed, and the indictment is dismissed. The matter is remitted to the Supreme Court, Bronx County for the purpose of entering an order in favor of the accused pursuant to CPL 160.50.

Defendant’s motion to suppress was properly granted. During a traffic stop, defendant made a hand motion as if to place an object in the back seat. This did not provide sufficient basis to search the vehicle (People v McCready, 121 AD2d 897, appeal dismissed 69 NY2d 981). Nothing in defendant’s behavior prior to the stop, to wit, looking away and slumping down, suggested that he was armed (People v Concepcion, 216 AD2d 141). In any event, once the officers removed him from the vehicle, there was no immediate threat to their safety (People v Chapman, 211 AD2d 544, Iv denied 85 NY2d 970). Concur—Ellerin, J. P., Wallach, Nardelli and Williams, JJ.