PEOPLE v. IRIZARRY, 79 N.Y.2d 890 (1992)

590 N.E.2d 234, 581 N.Y.S.2d 649

THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. ROBERTO IRIZARRY, Respondent.

Court of Appeals of the State of New York.Argued January 7, 1992
Decided February 20, 1992

Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Ira Beal, J.

Page 891

Robert M. Morgenthau, District Attorney (Leonard I. Picker
and Norman Barclay of counsel), for appellant.

Susan Hofkin Salomon and Philip L. Weinstein for respondent.

MEMORANDUM.

The order of the Appellate Division should be affirmed.

Page 892

The police officer’s observations of the defendant in this case provided him with an “objective credible reason” to approach the defendant and ask him questions about his destination and identity (see, People v Hollman, 79 N.Y.2d 181 [decided today] People v De Bour, 40 N.Y.2d 210, 223). The police officer’s request to search the defendant’s bag was improper, however, because it was not based on a “founded suspicion that criminal activity [was] afoot” (People v Hollman, supra, at 191; People v De Bour, supra, at 223). Because the defendant’s consent was a product of the improper police inquiry, the trial court erred when it found that the defendant had consented to the search of his bag (see, People v Hollman, supra, at 194).

Chief Judge WACHTLER and Judges SIMONS, KAYE, TITONE, HANCOCK, JR., and BELLACOSA concur; Judge ALEXANDER taking no part.

Order affirmed in a memorandum.