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«Greenberg Freeman LLP, New York (Michael A. Freeman of counsel), for appellant. Zeichner Ellman & Krause LLP, New York (Jantra Van Roy of counsel), ...»

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People v Barreras, 253 AD2d 369 [1998] [holding that even shaking hands, avoidance of eye contact and extreme nervousness disproportionate to what would be expected with a routine traffic stop is insufficient to give rise to the common-law right of inquiry]). There must be something more than mere nervousness on the part of the people in the stopped vehicle to establish a founded suspicion of criminal activity (see People v Gonzalez, 298 AD2d 133 [2002], lv denied 99 NY2d 558 [2002]; People v Smith, 280 AD2d 340, 341 [2001]; People v Cisnero, 226 AD2d 279 [1996], lv denied 88 NY2d 1020 [1996]). Here, by describing unspecified motions as furtive, the officers were making conclusory assertions that the conduct was suspicious. The officers’ unspecific testimony does not support a finding of founded suspicion of criminal activity.2 Such a conclusion is buttressed by the fact that defendant was polite and answered all the officers’ questions without resistance.

Having first made the correct decision in suppressing the evidence, Supreme Court erroneously reversed itself, operating under the mistaken assumption that People v Alvarez permitted intrusive questions of passengers without some basis for a founded suspicion. In Alvarez, however, unlike the present case, the police clearly had a founded suspicion that criminal activity was afoot. There, a livery cab was stopped for a traffic infraction in a high crime area around 11:30 P.M. The cab was part of the Taxi/Livery Robbery Inspection Program (TRIP) under which passengers were notified that the cab was subject to stop and visual inspection by the police.3 After making the stop, a highly experienced police sergeant perceived the defendant passenger acting suspiciously. The passenger looked back as the police officers approached the cab, and then was hesitant and unsure when asked about his destination -- conduct that was Indeed, the motion court in its first order found that “there was no testimony adduced at the hearing that Officer Manning and Cleri observed any occupant of the Accord doing anything suspicious other than acting nervous.” The Court of Appeals upheld the constitutionality of the TRIP program in People v Abad (98 NY2d 12, 17-18 [2002]).

somewhat odd considering he was in a taxi and would be presumed to know where he was going. These circumstances led this Court to conclude that “the sergeant possessed the requisite common-law right of inquiry to question the defendant as to whether he had any weapons” (308 AD2d at 188). Here, other than the occupants of the vehicle being nervous, there was no evidence indicating criminality, and thus, Alvarez is inapposite (People v Barreras, 253 AD2d at 373 [“(o)nce defendant’s papers were all found to be in order, the officers, without more, were obligated to issue the stop-sign summons and allow defendant to resume his journey, i.e., the initial justification for seizing and detaining defendant... was exhausted”] [internal quotation marks and citations omitted]). While the Alvarez decision took into consideration the dangers to police associated with traffic stops, it did not announce a new rule that an inquiry about the presence of weapons in a stopped car is outside the DeBour/Hollman framework, and we find no basis to do so here.

The initial ruling below -- that Officer Cleri violated defendant’s rights by asking whether he or his fellow passengers had any weapons -- was correct. New York State law requires a founded suspicion that criminality is afoot to engage in a common-law inquiry as Officer Cleri did, and no such suspicion is supported by the record here. Moreover, defendant’s statement to the police was fruit of the poisonous tree, as the custodial interrogation was itself predicated on unconstitutional behavior (People v Dodt, 61 NY2d 408, 417 [1984] [where the evidence sought to be suppressed “followed directly from the illegal arrest and detention of defendant, it (is) error to admit (that) evidence... at trial”]).

Accordingly, the judgment of the Supreme Court, Bronx County (Seth L. Marvin, J.), rendered March 12, 2009, convicting defendant, upon his plea of guilty, of two counts of attempted unlawful possession of an air pistol or air rifle in violation of Administrative Code of the City of New York § 10-131(b)(1), and sentencing him to a conditional discharge, should be reversed, on the law and the facts, the judgment vacated, the suppression motion granted, and the information dismissed.

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