People v Silvestry
2008 NY Slip Op 03488 [50 AD3d 931]
April 15, 2008
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, June 18, 2008


The People of the State of New York, Appellant,
v
Elvis Silvestry, Respondent.

—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Edward D. Saslaw of counsel), for appellant.

Sally Butler, Bayside, N.Y., for respondent.

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.