DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Ronald D. Hollie, J.), rendered July 1, 2015, convicting him of reckless endangerment in the first degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendants omnibus motion which was, in effect, to suppress certain testimony regarding the encounter between the police and the defendant.
ORDERED that the judgment is affirmed.
In the early morning hours of August 17, 2012, law enforcement officials were investigating an alleged carjacking that occurred in Queens County. In connection with this investigation, police officers arrested a male suspect, retrieved the 2008 Acura vehicle which was allegedly carjacked, and brought it to the 105th police precinct station house (hereinafter the precinct). Sometime thereafter, the defendant appeared at the precinct and requested to retrieve his cell phone from the allegedly stolen Acura vehicle. Police officers went outside to speak to the defendant, who was waiting in a vehicle outside the precinct. After being asked to step out of the vehicle, the defendant refused, and the officers attempted to physically remove him from the vehicle. The defendant fled the scene and, while driving away, ran over a police officers legs and struck a parked vehicle.
Days later, the defendant was arrested and charged with one count of reckless endangerment in the first degree. The defendant moved, inter alia, in effect, to suppress certain testimony regarding the encounter between the police and the defendant.
At a suppression hearing, Police Officer Joseph Manzella testified that on August 17, 2012, he exited the precinct with three other officers and saw the defendant sitting in the drivers seat of a parked car. Officer Manzella approached the car on the drivers side and asked through the open window, “What do you need?” The defendant responded that he needed a cell phone out of “that vehicle.” Officer Manzella testified that he believed that the defendant was referring to the allegedly stolen Acura vehicle, and he suspected that the defendant had something to do with the theft of that vehicle. Officer Manzella and another officer asked the defendant to step out of his vehicle, and the defendant refused. Officer Manzella opened the drivers side door and again asked the defendant to step out of the vehicle. The defendant once again refused and tried to close the vehicles door. Officer Manzella then attempted to physically remove the defendant from the drivers seat of the car, and a physical altercation ensued. Officer Manzella testified that during the altercation, the defendants vehicle went forward, ran over both his legs, hit a parked vehicle, went in reverse, ran over his ankles, and then fled the scene.
After the hearing, the Supreme Court, among other things, denied that branch of the defendants motion which was, in effect, to suppress certain testimony regarding the encounter between the police and the defendant. Thereafter, the defendant pleaded guilty to reckless endangerment in the first degree. The defendant appeals.
A police officer may approach a parked car for an objective, credible reason, not necessarily indicative of criminality (see People v. Harrison, 57 N.Y.2d 470, 475–476, 457 N.Y.S.2d 199, 443 N.E.2d 447; People v. Karagoz, 143 A.D.3d 912, 913, 39 N.Y.S.3d 217). Here, based upon the defendants request to retrieve his cell phone from the allegedly stolen vehicle, the police officers had an objective, credible reason to approach the defendants vehicle and speak to him (see People v. Ocasio, 85 N.Y.2d 982, 985, 629 N.Y.S.2d 161, 652 N.E.2d 907; People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562). However, after briefly speaking to the defendant, Officer Manzella asked him to exit the vehicle, and when the defendant refused, the officer opened the car door and attempted to remove the defendant from the drivers seat. “Where, like here, a vehicle is lawfully parked on the street and neither it nor its occupant is under any restraint, and the police have no grounds to suspect the occupant of criminality at that point, requesting the occupant to step out of the vehicle creates a new, unauthorized restraint” (People v. Eugenio, 185 A.D.3d 1050, 1051, 128 N.Y.S.3d 233; see People v. Thomas, 275 A.D.2d 276, 278, 712 N.Y.S.2d 548). “Thus, an officers directive to a defendant to exit a lawfully parked vehicle must be based upon a ‘reasonable belief that [the] defendant was, in fact, involved in criminal acts or that he posed some danger to the [officer]’ ” (People v. Eugenio, 185 A.D.3d at 1051–1052, 128 N.Y.S.3d 233, quoting People v. Larkin, 62 Misc.3d 62, 66–67, 90 N.Y.S.3d 814 [App. Term, 2d Dept., 9th & 10th Jud. Dists.] [internal quotation marks omitted]).
Contrary to the Peoples contention, the evidence adduced at the hearing did not establish that Officer Manzella or his fellow officers had a reasonable belief that the defendant was involved in a criminal act or that he posed a danger to them. Officer Manzella testified that when he approached the defendants vehicle, the defendant was not committing any crimes and was not in violation of any traffic regulations. Contrary to the Peoples contention, the defendants request to retrieve his cell phone from the allegedly stolen vehicle, by itself, did not provide the police officers with reasonable suspicion to believe the defendant was involved in the vehicles theft. Accordingly, Officer Manzella had no basis to ask the defendant to exit the vehicle.
“Under the attenuation exception to the exclusionary rule, ‘[t]he question to be resolved when it is claimed that evidence subsequently obtained is ‘tainted’ or is ‘fruit’ of a prior illegality is whether the challenged evidence was [obtained] ‘by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint’ ” (People v. Johnson, 79 A.D.3d 905, 906, 912 N.Y.S.2d 303, quoting Segura v. United States, 468 U.S. 796, 804–805, 104 S.Ct. 3380, 82 L.Ed.2d 599 [internal quotation marks omitted]). When determining whether an action taken by a defendant following an impermissible seizure dissipated the taint of the illegality, “[t]he test to be applied is whether defendants action ․ was spontaneous and precipitated by the illegality or whether it was a calculated act not provoked by the unlawful police activity and thus attenuated from it” (People v. Wilkerson, 64 N.Y.2d 749, 750, 485 N.Y.S.2d 981, 475 N.E.2d 448).
Here, the defendants action in running over Officer Manzellas legs and ankles with the vehicle constituted a calculated, independent criminal act, which broke the chain of events and dissipated the taint of the initial unlawful police conduct (see People ex rel. Gonzalez v. Warden of Anna M. Cross Ctr., 79 N.Y.2d 892, 894, 581 N.Y.S.2d 649, 590 N.E.2d 234; People v. Townes, 41 N.Y.2d 97, 101–102, 390 N.Y.S.2d 893, 359 N.E.2d 402; People v. Nunez, 137 A.D.3d 569, 26 N.Y.S.3d 694; People v. Wofford, 115 A.D.3d 1332, 1333, 982 N.Y.S.2d 666; People v. Tineo, 41 A.D.3d 876, 840 N.Y.S.2d 369; People v. Williams, 28 A.D.3d 1095, 1095, 813 N.Y.S.2d 615; People v. Little, 309 A.D.2d 767, 767–768, 765 N.Y.S.2d 262; People v. Wesley, 290 A.D.2d 244, 245, 735 N.Y.S.2d 130).
Accordingly, the Supreme Court properly denied that branch of the defendants omnibus motion which was, in effect, to suppress certain testimony regarding the encounter between the police and the defendant.
HINDS–RADIX, J.P., LASALLE, BARROS and CONNOLLY, JJ., concur.