Opinion
06-17-2016
The PEOPLE of the State of New York, Respondent, v. Roberto FELICIANO, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon Of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Daniel Gross Of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon Of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross Of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DeJOSEPH, and CURRAN, JJ.
MEMORANDUM: On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ), defendant contends that County Court erred in refusing to suppress physical evidence, i.e., a handgun, and his statement to the police. We reject that contention. According to the evidence presented at the suppression hearing, a police officer received radio dispatches that shots had been fired and that an anonymous caller had reported that a male suspect on a bicycle was in possession of a handgun. Upon responding to the vicinity within minutes of receiving the dispatches, the officer observed defendant, who generally matched the description of the suspect, riding a bicycle on the street (see generally People v. Moczo, 174 A.D.2d 365, 365, 570 N.Y.S.2d 572, lv. denied 78 N.Y.2d 1013, 575 N.Y.S.2d 821, 581 N.E.2d 1067 ). The officer pulled alongside defendant in his police vehicle and, without exiting his vehicle, the officer asked defendant to “stop his bike for a moment.” Contrary to defendant's contention, we conclude that “the information provided in the ... dispatch[es] coupled with the officer['s] observations provided the [officer] with ‘an objective, credible reason for initially approaching defendant and requesting information from him’ ” (People v. Burnett, 126 A.D.3d 1491, 1492, 6 N.Y.S.3d 375 ; see generally People v. Hollman, 79 N.Y.2d 181, 184, 581 N.Y.S.2d 619, 590 N.E.2d 204 ; People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ). The conduct of the officer in asking defendant to stop his bicycle for a moment did not elevate the encounter beyond a level one intrusion (see People v. Reyes, 83 N.Y.2d 945, 946, 615 N.Y.S.2d 316, 638 N.E.2d 961, cert. denied 513 U.S. 991, 115 S.Ct. 492, 130 L.Ed.2d 403 ; People v. Bent, 206 A.D.2d 926, 926, 615 N.Y.S.2d 185, lv. denied 84 N.Y.2d 906, 621 N.Y.S.2d 523, 645 N.E.2d 1223 ). Contrary to defendant's further contention, the officer engaged in mere observation, and was not in pursuit, when he followed defendant after defendant ignored the officer's question and continued to ride away on the bicycle (see People v. Rainey, 122 A.D.3d 1314, 1314–1315, 996 N.Y.S.2d 444, lv. denied 25 N.Y.3d 1169, 15 N.Y.S.3d 301, 36 N.E.3d 104 ; see generally People v. Howard, 50 N.Y.2d 583, 592, 430 N.Y.S.2d 578, 408 N.E.2d 908, cert. denied 449 U.S. 1023, 101 S.Ct. 590, 66 L.Ed.2d 484 ). The testimony at the suppression hearing established that the officer's conduct was unobtrusive and did not limit defendant's freedom of movement (see Rainey, 122 A.D.3d at 1314–1315, 996 N.Y.S.2d 444 ; People v. Mack, 89 A.D.3d 864, 865, 932 N.Y.S.2d 163, lv. denied 18 N.Y.3d 959, 944 N.Y.S.2d 488, 967 N.E.2d 713 ). The court thus properly determined that defendant's subsequent act of reaching into his waistband, an area known to the officer to be used for concealing firearms, and appearing to discard an object therefrom was not in response to any illegal police conduct, that the officer's ensuing pursuit of defendant when he began to flee was lawful, and that the abandoned handgun was properly seized by the police (see People v. Bachiller, 93 A.D.3d 1196, 1197–1198, 940 N.Y.S.2d 368, lv. dismissed 19 N.Y.3d 861, 947 N.Y.S.2d 410, 970 N.E.2d 433 ; Mack, 89 A.D.3d at 865, 932 N.Y.S.2d 163 ; People v. Foster, 302 A.D.2d 403, 404, 756 N.Y.S.2d 239, lv. denied 100 N.Y.2d 581, 764 N.Y.S.2d 391, 796 N.E.2d 483 ). Inasmuch as the officer's conduct was lawful, defendant's statement to the police is not subject to suppression as fruit of the poisonous tree (see People v. Sims, 106 A.D.3d 1473, 1474, 964 N.Y.S.2d 380, appeal dismissed 22 N.Y.3d 992, 979 N.Y.S.2d 557, 2 N.E.3d 925 ). It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.