Opinion
2014-05-1
The PEOPLE of the State of New York, Respondent, v. Michael WHITE, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Svetlana M. Kornfeind of counsel), and Dechert LLP, New York (Deborah S. Sohn of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (Svetlana M. Kornfeind of counsel), and Dechert LLP, New York (Deborah S. Sohn of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), for respondent.
MAZZARELLI, J.P., RENWICK, FEINMAN, GISCHE, KAPNICK, JJ.
Judgment, Supreme Court, New York County (Marcy L. Kahn, J.), rendered May 25, 2012, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to a term of six years, unanimously affirmed.
The court properly denied defendant's suppression motion. Late at night, in a particularly robbery-prone area, the police saw defendant and his two companions engaging in a pattern of movements that was sufficiently unusual to attract the officers' attention ( see People v. Ocasio, 85 N.Y.2d 982, 985, 629 N.Y.S.2d 161, 652 N.E.2d 907 [1995] ), even if “not necessarily indicative of criminality” ( People v. McIntosh, 96 N.Y.2d 521, 525, 730 N.Y.S.2d 265, 755 N.E.2d 329 [2001] ). Accordingly, the record supports the hearing court's finding that the police had an objective credible reason to approach the men to request information.
In any event, at this point, regardless of their subjective intentions, the police did nothing more than stop their car and get out. Defendant and a companion turned and fled immediately upon seeing the plainclothes officers, who reasonably believed they had been recognized as the police ( see People v. Collado, 72 A.D.3d 614, 900 N.Y.S.2d 46 [1st Dept.2010],lv. denied15 N.Y.3d 850, 909 N.Y.S.2d 27, 935 N.E.2d 819 [2010], and cases cited therein). As defendant ran, other members of the police team, who were in another car, saw defendant “clutching” at his waistband in a manner that indicated the presence of a weapon. The officers gave detailed testimony establishing that, based on their experience, defendant clearly appeared to have a firearm in his waistband, even though the officers could not see a weapon. Based on all these factors, the police had reasonable suspicion of criminality justifying their pursuit of defendant ( see People v. Stephens, 47 A.D.3d 586, 588–589, 851 N.Y.S.2d 136 [1st Dept.2008],lv. denied10 N.Y.3d 940, 862 N.Y.S.2d 346, 892 N.E.2d 412 [2008] ). The record fails to support defendant's assertion that the police were already chasing defendant before making the observations regarding his waistband.
Therefore, the weapon defendant discarded in the course of his flight was lawfully obtained. The record also supports the court's alternative finding that defendant's independent act of discarding the weapon during the chase was a strategic, calculated decision and not a spontaneous reaction to police activity ( see People v. Boodle, 47 N.Y.2d 398, 402, 418 N.Y.S.2d 352, 391 N.E.2d 1329 [1979],cert. denied444 U.S. 969, 100 S.Ct. 461, 62 L.Ed.2d 383 [1979] ).