Opinion
April 1, 1991
Appeal from the Supreme Court, Kings County (Brill, J.).
Ordered that the judgment is affirmed.
The testimony adduced at the suppression hearing revealed that on the night of May 5, 1988, Police Officer Trevel and his partner were patrolling an area in Brooklyn known for drug trafficking. They saw a group of men talking on the street. Two of the men, upon seeing the police officers, became visibly nervous, turned away from the group, and began walking away at a very fast pace. The police officers followed the men in their car. Police Officer Trevel exited the car, held up his shield, and told the men that he wanted to speak to them. The defendant walked towards him, then turned around, reached into his waistband, and dropped a gun. When Officer Trevel walked towards him, the defendant ran away. The gun was recovered and the defendant was subsequently arrested.
It is well established that, in the absence of any indication of criminality, a police officer may stop a citizen on the street for the purpose of inquiry if he or she can point to articulable facts which warrant the intrusion (see, People v. De Bour, 40 N.Y.2d 210; see also, People v. Bloomfield, 156 A.D.2d 572; People v. Harris, 151 A.D.2d 777; People v. Tolliver, 145 A.D.2d 660; People v. Smith, 117 A.D.2d 690). In this case, the police officers had an objective credible reason to approach the defendant and their actions in attempting to do so were lawful (see, People v. De Bour, supra; see also, People v. Harrison, 57 N.Y.2d 470; People v. Tolliver, supra; People v. Smith, supra). Where the initial approach constitutes legitimate and lawful conduct, the recovery of property discarded by the defendant as a result of that approach is also lawful (see, People v. Leung, 68 N.Y.2d 734; People v. Perez, 154 A.D.2d 406). In any event, we find that the defendant's conduct in discarding the gun constituted an abandonment (see, People v. Boodle, 47 N.Y.2d 398, cert denied 444 U.S. 969; People v. Greene, 150 A.D.2d 604). Insofar as the defendant seeks to use testimony adduced at trial to establish unlawful police conduct, it is well settled that trial testimony may not be considered in reviewing a hearing court's denial of a defendant's motion to suppress evidence (see, People v. Malone, 121 A.D.2d 657; People v. Anderson, 127 A.D.2d 774).
We note that the trial court should not have permitted the People's ballistics expert to testify that the gun had been discharged shortly before its recovery. The ballistics expert had already testified that the gun was operable. Under the circumstances, there was no need for him to elaborate on this point in light of the potential prejudice to the defendant. However, we conclude that any prejudice to the defendant was dispelled by the trial court's prompt curative instructions (see, People v. Santiago, 52 N.Y.2d 865; People v. Santiago, 155 A.D.2d 628).
We have examined the defendant's remaining contentions and find them to be either unpreserved for appellate review (see, People v. Battles, 141 A.D.2d 748), without merit (see, People v. Suitte, 90 A.D.2d 80), or harmless beyond a reasonable doubt (People v Crimmins, 36 N.Y.2d 230). Brown, J.P., Kooper, Harwood and Miller, JJ., concur.