People v. SmallPeople v. Small
Spain, J. Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered May 11, 2010, convicting defendant upon his plea of guilty of the crime of attempted assault in the second degree.
In the early hours of January 1, 2009, police responded to a second disturbance call outside a nightclub in the Village of Endicott, Broome County and arrested defendant for disorderly conduct. Defendant was transported to the police station, where an incident reportedly occurred in which a police officer was injured while trying to remove from defendant‘s mouth a substance later established to be crack cocaine, after defendant refused a directive to remove it. A six-count indictment was
Defendant‘s omnibus motion requested, among other relief, a Dunaway hearing, contending that police lacked probable cause to arrest him outside the nightclub for disorderly conduct and that all of the charges against him should be dismissed. At the Dunaway hearing, the People offered only the testimony of one of the responding officers pertaining to the circumstances surrounding defendant‘s arrest outside the nightclub. Neither the officer involved in the incident at the police station nor any other witnesses to it testified. Defendant called three eyewitnesses to his arrest, arguing that his arrest was unlawful, that the subsequently seized evidence should be suppressed as the fruit of the poisonous tree, and that all charges must be dismissed.
Crediting the defense witnesses, County Court ruled that police lacked probable cause to arrest defendant, inviting counsel to address the effect of this finding on the admissibility of the evidence and remaining charges. The court—based in part upon the People‘s concession—ruled that, because the police lacked probable cause to arrest defendant for disorderly conduct (count 6) at the nightclub, that count should be dismissed and the cocaine seized from defendant at the police station should be suppressed, but only for purposes of the criminal possession charge (count 4); the court then dismissed that possessory charge, the intentional assault charge (count 1) and the obstruction charge (count 5). However, the court concluded that dismissal of count 2 (felony assault) and count 3 (tampering) was not warranted based upon its finding that “defendant‘s act of free will, in attempting to ‘suppress’ [i.e., swallow] the physical evidence” did not flow from the unlawful arrest; therefore, the People would be allowed to prove at trial that the physical evidence that defendant sought to conceal in his mouth under those counts was cocaine. Defendant subsequently entered a guilty plea to attempted assault in the second degree and, after his motions to withdraw his plea were denied, he was sentenced to 1 1/2 to 3 years in prison.
As the People candidly concede on appeal, given County
The focus of the attenuation exception is “on the presence or absence of ‘free will’ or voluntariness regarding a defendant‘s . . . acts which follow illegal police conduct; thus, the attenuation inquiry resolves whether the causal connection between the police misconduct and the later discovery of the challenged evidence is so far removed as to dissipate the taint” (People v Richardson, 9 AD3d 783, 788 [2004], lv denied 3 NY3d 680 [2004]; see Segura v United States, 468 US at 805). “That determination requires consideration of the temporal proximity of the arrest and [acquisition of evidence] . . . , the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct” (People v Conyers, 68 NY2d at 983 [citations omitted]; see Brown v Illinois, 422 US at 603-604; People v Bradford, 15 NY3d at 333; People v Jones, 21 NY3d at 455).
Given the complete lack of testimony at the Dunaway hearing regarding the post-illegal-arrest incident at the police station—including any intervening circumstances—in which cocaine evidence
As the People also acknowledge, the suppressed cocaine is the only “physical evidence” that supports the tampering with physical evidence charge (see
Rose, J.P., Garry and Egan Jr., JJ., concur. Ordered that the judgment is reversed, on the law, motion to suppress granted in its entirety, plea vacated, and indictment dismissed in its entirety.