50 A.D.3d 931
N.Y. App. Div.
2008

THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v ELVIS SILVESTRY, Respondent.

Appellate Division of the Supreme Court of the State of New York, Second Department

854 N.Y.S.2d 671

Appeal by the People from an order of the Supreme Court, Queens County (Aloise, J.), dated April 18, 2007, which, after a hearing, granted that branch of the defendant’s omnibus motion which was to suppress physical evidence.

Ordered that the order is affirmed.

Contrary to the People’s contention, the police officer did not have reasonable suspicion to believe that the defendant had committed or was about to commit a crime to justify a stop and frisk the defendant (see People v Martinez, 80 NY2d 444, 447 [1992]; People v De Bour, 40 NY2d 210, 223 [1976]; People v Stevenson, 7 AD3d 820 [2004]; cf. People v Alston, 23 AD3d 487, 488 [2005]). Accordingly, the Supreme Court properly granted that branch of the defendant’s omnibus motion which was to suppress physical evidence. Lifson, J.P., Florio, Angiolillo and Chambers, JJ., concur.