People v. Severino

Appellate Division of the Supreme Court of New York

People v. Severino

126 A.D.3d 1015, 5 N.Y.S.3d 304, 2015 NY Slip Op 02509, 2015 N.Y. App. Div. LEXIS 2531

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 25, 2015

Docket1998-07685

StatusPublished

Cited by2 cases

This text of 126 A.D.3d 1015 (People v. Severino) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Severino, 126 A.D.3d 1015, 5 N.Y.S.3d 304, 2015 NY Slip Op 02509, 2015 N.Y. App. Div. LEXIS 2531 (N.Y. Ct. App. 2015).

Pincite

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered August 5, 1998, convicting him of criminal possession of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the seventh degree, upon his plea of *1016 guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of the defendant’s motion to suppress physical evidence.

Ordered that the judgment is reversed, on the law, the defendant’s motion to suppress physical evidence is granted, and the indictment is dismissed.

Contrary to the People’s contentions, the arresting officer did not have reasonable suspicion to believe that the defendant had committed or was about to commit a crime (see People v Stevenson, 7 AD3d 820 [2004]; People v Harris, 149 AD2d 730 [1989]; People v Lewis, 49 AD2d 558 [1975]). The officer briefly observed what he initially characterized only as a “bulge” on the right side of the defendant’s pants. Despite this initial characterization, the officer later testified that he thought he had observed a holster, which turned out to be a buckle attached to the right side of the defendant’s pants. This observation, without more, was not sufficient to permit the officer to forcibly detain the defendant (see People v De Bour, 40 NY2d 210, 216 [1976]; People v Stevenson, 7 AD3d at 820; People v Moore, 176 AD2d 297, 299 [1991]). Accordingly, the physical evidence recovered from the defendant as a consequence of the unlawful detention and arrest should have been suppressed, and, without that evidence, there was no basis for the defendant’s convictions of criminal possession of a controlled substance in the third and seventh degrees.

Mastro, J.P., Dickerson, Cohen and LaSalle, JJ., concur.

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Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered August 5, 1998, convicting him of criminal possession of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the seventh degree, upon his plea of *1016 guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of the defendant’s motion to suppress physical evidence.

Ordered that the judgment is reversed, on the law, the defendant’s motion to suppress physical evidence is granted, and the indictment is dismissed.

Contrary to the People’s contentions, the arresting officer did not have reasonable suspicion to believe that the defendant had committed or was about to commit a crime (see People v Stevenson, 7 AD3d 820 [2004]; People v Harris, 149 AD2d 730 [1989]; People v Lewis, 49 AD2d 558 [1975]). The officer briefly observed what he initially characterized only as a “bulge” on the right side of the defendant’s pants. Despite this initial characterization, the officer later testified that he thought he had observed a holster, which turned out to be a buckle attached to the right side of the defendant’s pants. This observation, without more, was not sufficient to permit the officer to forcibly detain the defendant (see People v De Bour, 40 NY2d 210, 216 [1976]; People v Stevenson, 7 AD3d at 820; People v Moore, 176 AD2d 297, 299 [1991]). Accordingly, the physical evidence recovered from the defendant as a consequence of the unlawful detention and arrest should have been suppressed, and, without that evidence, there was no basis for the defendant’s convictions of criminal possession of a controlled substance in the third and seventh degrees.

Mastro, J.P., Dickerson, Cohen and LaSalle, JJ., concur.

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Bluebook (online)

126 A.D.3d 1015, 5 N.Y.S.3d 304, 2015 NY Slip Op 02509, 2015 N.Y. App. Div. LEXIS 2531, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-severino-nyappdiv-2015.

Opinion

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