People v. Rolando Oquendo

—Judgment of the Supreme Court, New York County (Alfred Kleiman, J., at suppression hearing; Charles Tejada, J., at nonjury trial) rendered September 28, 1993, convicting defendant of criminal possession of stolen property in the fourth degree, and sentencing him, as a second felony offender, to a term of l ½ to 3 years, reversed, on the law and the facts, the motion to suppress evidence granted, and the indictment dismissed. The matter is remitted to the trial court for the purpose of entering an order in favor of the accused pursuant to CPL 160.50, not less than 30 days after service of this order upon the respondent, with leave during this 30 day period to move and seek any further stay of the implementation of CPL 160.50 as in the interest of justice is required. Regardless of whether this police-citizen encounter is characterized as an arrest or a stop and frisk, it exceeded the scope of what was constitutionally permissible under the particular circumstances. The objective information available to the officer, who merely saw defendant walking in an area in the Port Authority Bus Terminal that just minutes earlier had been completely open to the public, only provided "a founded suspicion that criminal activity [was] afoot” (People v De Bour, 40 NY2d 210, 223), thereby activating the officer’s common-law right to inquire. Neither the fact that this Spanish-speaking defendant failed to immediately respond to the officer’s question (People v Gutierrez, 129 AD2d 463, 465, appeal dismissed 70 NY2d 782) nor the fact that the arresting officer subjectively 224 believed that defendant "looked like he was going to run on [him]” in response to the officer’s direction to stop (an erroneous belief as it turned out) was a sufficient basis to escalate this into a more intrusive encounter. Furthermore, a careful review of the testimony reveals that the officer saw the bulge that turned out to be a knife after defendant was arrested. "In evaluating the police action we must consider whether or not it was justified in its inception and whether or not it was reasonably related in scope to the circumstances which rendered its initiation permissible” (People v De Bour, supra, at 222) and subsequent developments cannot serve as the foundation for either a finding of probable cause to arrest or reasonable suspicion to conduct a stop and frisk. In light of the foregoing, we do not reach appellant’s remaining contentions. Concur—Ellerin, J. P., Wallach, Asch and Mazzarelli, JJ.