Opinion
January 30, 1989
Appeal from the Supreme Court, Queens County (Farlo, J.).
Ordered that the judgment is affirmed.
The hearing court properly denied suppression of certain physical evidence which the defendant had discarded as he was being pursued by a police officer. The radio report of a robbery in progress, coupled with the officers' observations upon their arrival at the address where the crime reportedly occurred, gave them an articulable basis for the purpose of inquiring as to the activities of the defendant and his companions (see, People v De Bour, 40 N.Y.2d 210, 216; People v Perry, 133 A.D.2d 380, affd 71 N.Y.2d 871). The fact that the police officer approached with his gun drawn did not transform the otherwise lawful detentive stop into an arrest since the circumstances of the confrontation permitted the officer to exercise caution in order to ensure his personal safety (see, People v Chestnut, 51 N.Y.2d 14, 21, cert denied 449 U.S. 1018; People v Perry, supra). The display by one of the defendant's companions of what appeared to be a gun, and the flight of the defendant and his companions upon the officer's approach, established the necessary reasonable suspicion that criminal activity was afoot and, therefore, that pursuit by the officers was justified (see, People v Leung, 68 N.Y.2d 734; People v Howard, 50 N.Y.2d 583, 592). In view of our holding that the police conduct in approaching and pursuing the defendant was lawful, the recovery of the plastic box and its contents and the defendant's jacket, all discarded during his flight, was also legally permissible (see, People v Leung, supra, at 736).
Viewing the evidence in the light most favorable to the prosecution (People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt of burglary in the first degree and assault in the second degree. The record clearly establishes that the complainant suffered "physical injury" within the meaning of Penal Law § 10.00 (9). There was proof that the 71-year-old complainant was restrained in a stranglehold as he was dragged by the defendant and his companions into the elevator and down a flight of stairs to his apartment. The complainant was also kicked and punched by the three men in the stomach, abdomen and jaw after they discovered that the complainant had given them the wrong number of his apartment. As a result of the attack, the complainant ached, felt dizzy and had trouble breathing. He could not speak at all on the evening of the crime and for the next two or three days he could only whisper and had trouble swallowing. Thus, the jury's finding that the injuries suffered by the plaintiff constituted "physical injury" is fully supported by the record (see, People v Bogan, 70 N.Y.2d 860; People v Rojas, 61 N.Y.2d 726; People v Esquilin, 141 A.D.2d 838).
We have considered the defendant's remaining contention and find it to be without merit. Mollen, P.J., Mangano, Thompson and Brown, JJ., concur.