People v. Flavius

Appeal by the People from an order of the County Court, Orange County (DeRosa, J.), dated July 17, 2014, which granted that branch of the defendant’s omnibus motion which was to suppress physical evidence and his statements to law enforcement officials. Ordered that the order is affirmed. Contrary to the People’s contention, the frisk of the defendant by a police officer was not justified, as there was no circumstance to support a reasonable suspicion that the officer was in danger of physical injury (see CPL 140.50 [3]; People v Holmes, 81 NY2d 1056, 1058 [1993]; People v Martinez, 191 AD2d 457, 458-459 [1993]; People v Terrell, 185 AD2d 906, 907-908 [1992]; cf. People v Batista, 88 NY2d 650, 654-655 [1996]). Therefore, the gun and holster found on the defendant were properly suppressed. The hearing court also properly granted suppression of the defendant’s subsequent statement to police as the fruit of the illegal search and seizure (see Wong Sun v United States, 371 US 471, 484-487 [1963]; People v Milerson, 72 AD2d 588, 589 [1979], affd 51 NY2d 919 [1980]; cf. People v Martinez, 37 NY2d 662, 670-671 [1975]). Leventhal, J.P., Dickerson, Roman and Hinds-Radix, JJ., concur.