Opinion
February 7, 2001.
Appeal from Judgment of Supreme Court, Monroe County, Mark, J. — Criminal Possession Marihuana, 2nd Degree.
PRESENT: HAYES, J.P., HURLBUTT, SCUDDER, KEHOE AND LAWTON, JJ.
Judgment unanimously reversed on the law, motion to suppress granted in part and matter remitted to Supreme Court for further proceedings on the indictment in accordance with the following Memorandum:
Defendant appeals from a judgment convicting him following a jury trial of criminal possession of marihuana in the second degree (Penal Law § 221.25). We agree with defendant that his Miranda rights were violated, and thus Supreme Court erred in refusing to suppress the statements made by defendant to the police after he was placed in the police car. A reasonable man, innocent of any crime, would have believed that he was in custody had he been in defendant's position ( see, People v Yukl, 25 N.Y.2d 585, 589, rearg denied 26 N.Y.2d 883, cert denied 400 U.S. 851). We conclude, however, that the court properly refused to suppress the marihuana discovered in defendant's tote bag. The court properly determined that defendant abandoned the bag before the illegal stop of his vehicle ( see, People v. Johnson, 167 A.D.2d 880, 881). We therefore reverse the judgment, grant defendant's motion in part by suppressing the statements made by defendant to the police after he was placed in the police car, and remit the matter to Supreme Court for further proceedings on the indictment.