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Gun conviction reversed

Seizure was unlawful

By: Bennett Loudon//July 10, 2023

Appellate Division Fourth Department

Gun conviction reversed

Seizure was unlawful

By: Bennett Loudon//July 10, 2023//

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A state appeals court has reversed a weapon conviction and dismissed the charges because of an unlawful police seizure.

Defendant Christopher Montgomery pleaded guilty in September 2021 in Onondaga County Court before Judge Stephen J. Dougherty to second-degree criminal possession of a weapon.

In a recent decision, the Appellate Division of state Supreme Court, Fourth Department, unanimously reversed the conviction vacated the plea, granted a defense motion to suppress the physical evidence, and dismissed the indictment.

In January 2020, the victim of a shooting identified Montgomery’s brother as the shooter. Law enforcement officials obtained a search warrant for the home of Montgomery’s brother.

The warrant authorized officers to search anyone found on the premises. Police saw Montgomery leave the residence prior to the execution of the search warrant and took him into custody as he was walking in the road about two blocks away from his brother’s home.

Montgomery tried to run away but he was quickly caught, and a discarded gun was found along the route he fled. Montgomery was charged with a single count of second-degree criminal possession of a weapon.

A defense motion to suppress the physical evidence was denied and Montgomery pleaded guilty.

Montgomery’s appellate lawyer, Melissa K. Swartz, argued that Dougherty should have suppressed the evidence because Montgomery was unlawfully seized.

“We agree,” the Fourth Department wrote.

Dougherty refused to suppress the evidence on the ground that the officers’ observation of Montgomery walking in the roadway provided probable cause for them to believe that he had violated the Vehicle and Traffic Law, which justified the initial stop and the subsequent pursuit.

Under Vehicle and Traffic Law, where safe sidewalks are provided, it is unlawful for a pedestrian to walk on the road.

A police officer testified that, other than walking down the center of the road, he didn’t see Montgomery do anything illegal.

The prosecutor did not establish that a sidewalk was available and could be used safely, the court wrote, noting that the incident took place in January in central New York where snow and ice can make sidewalks impassable.

The prosecution also did not establish that Montgomery violated the law, which requires a pedestrian, where sidewalks are not provided, to walk only on the left side of the road or it’s the shoulder facing traffic.

“We agree with defendant that, under the circumstances of this case, the People failed to meet their burden of establishing the legality of the police conduct. The court therefore erred in refusing to suppress the physical evidence obtained as a result of the unlawful seizure,” the court wrote.

“Because our determination results in the suppression of all evidence supporting the crime charged, the indictment must be dismissed,” the court concluded.

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