PEOPLE v. SILVESTRY, 11 N.Y.3d 902 (2009)

2009 NY Slip Op 00092

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

No. 49 SSM 52.Court of Appeals of the State of New York.
Decided January 13, 2009.

APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered April 15, 2008. The Appellate Division affirmed an order of the Supreme Court, Queens County (Michael Aloise, J.), which, after a hearing, had granted that branch of the defendant’s ominibus motion which was to suppress physical evidence.

The Appellate Division concluded that a 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 of the defendant.

People v Silvestry, 50 AD3d 931, affirmed.

Richard A. Brown, District Attorney, Kew Gardens (Edward D. Saslaw of counsel), for appellant.

Sally Butler, Bayside, for respondent.

OPINION OF THE COURT
The order of the Appellate Division should be affirmed.

Whether the circumstances of a particular case rise to the level of reasonable suspicion is a mixed question of law and fact, beyond our review if the determination is supported by the record. Here record evidence supports the lower courts’ determination that the police lacked such suspicion (People v De Bour, 40 NY2d 210 [1976]).

The People’s other contentions lack merit.

Acting Chief Judge CIPARICK and Judges GRAFFEO, READ, SMITH, PIGOTT and JONES concur.

Page 903

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed in a memorandum.