The People, Respondent,v.John Gayden, Appellant.BriefN.Y.October 14, 2016STATE OF NEW YORK Brief Completed: To Be Argued By: Time Requested: April 6, 20 16 Daniel Gross 10 Minutes COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, -vs- JOHN GAYDEN, Respondent, Defendant-Appellant. BRIEF FOR RESPONDENT APL- 2016-00006 SANDRA DOORLEY District Attorney of Monroe County Attorney for Respondent By: Daniel Gross Assistant District Attorney Suite 832 Ebenezer Watts Building Rochester, New York 14614 Phone: (585) 753-4588 Fax: (585) 753-4576 TABLE OF CONTENTS TABLE OF AUTHORITIES QUESTION PRESENTED PRELIMINARY STATEMENT STATEMENT OF FACTS ARGUMENT SUMMARY POINT I POINT II CONCLUSION Whether the police had reasonable suspicion to pursue defendant is a mixed question of law and act which is only reviewable by this Court for record support. The police had the requisite reasonable suspicion to pursue defendant when he immediately fled from them because they were responding to an anonymous report of two men with guns and defendant and his codefendant fit the general description. -i - 11 2 3 8 9 12 21 TABLE OF AUTHORITIES FEDERAL CASES Florida v J. L., 529 US 266 (2000) ............................................ 18, 19 Teny v Ohio, 392 US 1 (1968) .................................................. 12 Whren v United Swtes, 517 US 806 ( 1996) ......................................... 14 CASES People vArgyris, 24 NY3d 1138 (2014) .................................... 13, 15, 17 People v Batista, 88 NY2d 650 ( 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 People v Benjamin, 51 NY2d 267 ( 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 16 People v Brown, 25 NY3d 973 (2015) ........................................... 8, 9 People v Chestnut, 51 NY2d 14 (1980) ........................................... 17 People v Cinlon, 304 AD2d 454 (1st Dept 2003),1v denied 100 NY2d 579 (2003) .... . .... 11 PeoplevDeBow·, 40NY2d210(1976) .. . ............. . ... . ..... . .. . .. . .. . . 7, 15,16 People v Gayden, 126 AD 3d 1518 (4th Dept 20 15), lv granted 26 NY 3d 1088 (20 15) . . . . . 2, 7 People v Holmes, 81 NY2d 1056 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 17 People v Martinez, 80 NY2d 444 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 PeoplevMoore, 6NY3d496(2006) ... . ................ . 8, 9, 10, 12, 13,14, 16,17, 18,19 People v Pines, 99 NY2d 525 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 17 People v Price, 109 AD3d 1189 (4th Dept 2013), lv denied22 NY3d 1043 (2013) .. . .... .. . 2 People v Robinson, 97 NY2d 341 (200 1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 People v Sa/anum, 71 NY2d 869 ( 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 People v Stewart, 41 NY2d 65 ( 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 13 -ii- People v SJoller, 42 NY2d 1052 ( 1977) . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 People v William l/, 98 NY2d 93 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 15, 18, 19 People v William, 19 NY3d 891 (2012) ............................................ 9 People v Williams, 30 AD 3d 980 (4th Dept 2006), lv denied 7 NY3d 852 (2006) . . . . . . . . . . 11 People v Woods, 98 NY2d 627 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 19 STATUTES CPL 4 70.35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Penal Law§ 265.02 ......................................................... 2, 3 Penal Law§ 265.03 ......................................................... 2, 3 -iii- Question: Answer of the Trial Court: Answer of the QUESTION PRESENTED Following an anonymous phone report of two black males with guns at a certain location, did the police have the requisite reasonable suspicion to pursue defendant, who was found one minute later in the area given in the report, fit the general description, and immediately fled when a police officer attempted to speak with him? Yes. The trial court denied defendant's suppression motion. Appellate Division: Yes. l PRELIMINARY STATEMENT Defendant John Gayden was convicted, upon his plea of guilty taken on February 17, 20 11, of two counts of criminal possession of a weapon in the second degree (Penal Law§ 265.03 [1] [b]; [3]) and one count of criminal possession of a weapon in the third degree (Penal Law§ 265.02 [1]) in Monroe County Court (Vincent M. Dinolfo, J.) (Record ["R"] at 9). Defendant was sentenced on March 3, 2011, to a concurrent determinate term of five years imprisonment plus five years post-release supervision for each count of the indictment. There has been no stay of the sentence, and the defendant is currently on post-release supervision (DIN: 11-B-0695). Defendant's conviction was unanimously affirmed on appeal (People v Gayden, 126 AD3d 1518 [4th Dept 2015]). The Appellate Division found, as relevant to this appeal, that police possessed the requisite reasonable suspicion to pursue defendant when he fled from them based on an anonymous report of two individuals carrying handguns in a certain location, the temporal and spatial proximity of defendant to that location, that defendant fit the description, and defendant's flight upon observing the police approach (id. at 1518, citing People v Price, 109 AD3d 1189 [4th Dept 2013], lv denied 22 NY3d 1043 [2013]). A judge of this Court granted leave to appeal (26 NY3d 1088 [20 15]). 2 STATEMENT OF FACTS Monroe County Indictment # 0527/2010 charged defendant with two counts of criminal possession of a weapon in the second degree (Penal Law§ 265.03 [1] [b]; [3]) and one count of criminal possession of a weapon in the third degree (Penal Law§ 265.02 [1]) for possessing loaded pistol with intent to use it unlawfully against another, while outside his home or place of business, and while having a previous conviction (R 11-12). Defendant thereafter moved for, inter alia, a suppression hearing for the recovered pistol, which the court granted (R 33- 34, 234-244). Suppression Hearin& According to the hearing testimony, on June 11, 2010, at approximately 11 :56 a.m., Rochester Police Officer Anthony Bongiovanni, a fifteen year police veteran, received a radio dispatch for two men with guns (R 91-92). The dispatch described the suspects as two black males, one wearing a black t-shirt and the other wearing a white t-shirt, on Ellison Street in the City of Rochester (R 93). The dispatch was based on an anonymous 911 call, which reported that two adult black males, one in a white t-shirt with red letters and the other in a black t-shirt, had handguns in their waistbands and were walking together back and forth near the middle of Ellison Street, near its intersection with Webster Street (R 92-93, 261; Appellant's Brief, Exhibit B). Ellison Street is a "short street," that is only 3 about three quarters of a mile long and runs north-south between Clifford A venue and Webster Avenue in the City of Rochester (R 114). Officer Bongiovanni responded to the call from Bay Street, heading eastbound towards its intersection with Ellison Street (R 114). Bay Street intersects with Ellison Street one block north of Webster Street. Within a minute of the report, Officer Bongiovanni observed "two males - adult males walking side by side ... one of them fit the description and the other one had similarities to the description" walking southbound on Ellison Street, near the Bay Street intersection (R 93-94, 131-132). Both of the suspects were black males, one was wearing a black t-shirt while the other was wearing a blue jacket with a light colored shirt coming out from underneath (R 94, 115, 139-140, 145). Officer Bongiovanni radioed out that he was on scene and had located two suspects who fit the description (R 61, 103). Due to traffic congestion, Officer Bongiovanni parked his vehicle on Bay Street approximately 50-60 feet away from the suspects and did not activate his lights or sirens at any time (R 94-95). Upon exiting his vehicle, Officer Bongiovanni slowly jogged to catch up with the suspects, who continued to walk southbound on Ellison Street (R 95-96). As soon as the suspects, later identified as Greg Thacker ("Thacker") and defendant, looked back towards Officer 4 Bongiovanni they split up (R 96). Thacker fled into a side yard off of Ellison Street (R 95-97). Defendant continued to walk southbound on Ellison Street (R 43-44, 97). Officer Bongiovanni followed Thacker into the backyard with his gun drawn and observed Thacker hide what was later discovered to be a handgun underneath a pile of leaves (R 99-l 00, 112). Rochester Police Officer Antonio Jorge, an eighteen year police veteran, was also on patrol when he received both the original dispatch and Officer Bongiovanni's subsequent radio call (R 41, 52, 59, 65). Officer Jorge approached the call northbound on Ellison Street from Webster Avenue, arriving within two minutes of the original dispatch (R 43, 54, 62-63). As he pulled up Ellison Street, Officer Jorge observed Thacker flee into a backyard with Officer Bongiovanni running after him and observed defendant walking down Ellison Street (R 43, 64). No one else was in the area of the call (R 55). Officer Jorge parked his vehicle and exited to speak with defendant (R 43-44, 64). However, once he observed Officer Jorge exiting his vehicle, defendant yelled "oh shit," and fled (R 43-44, 73, 101-102). Officer Jorge gave chase and immediately observed defendant with his hands around his waistband (R 44, 68, 71, 102, 142). Within a second or two of running after defendant, Officer Jorge observed a handgun fall from defendant's waist (R 45, 51, 72-73). Officer Jorge caught defendant after a brief chase, placed him in handcuffs, 5 and walked him back to his patrol vehicle (R 45). Defendant later admitted to possessing the gun (R 47-48,50, 80-81). Following the hearing, the court denied suppression (Melchor E. Castro, A.J.). In its written decision, the court found that Officer Jorge's pursuit of defendant was justified by the anonymous tip of two black males with guns, which was sufficiently corroborated by defendant's sex, race, temporal and spatial proximity to the report, and reaction to the arrival of police officers (R 265-266). Plea & Sentencina Following denial of the motion, defendant plead guilty to the indictment and admitted that on June 11, 2010, he possessed a loaded Mauser P38 nine millimeter semi-automatic pistol outside of his home or place of business, with intent to use the pistol unlawfully, and having been previously convicted of a felony (R 205- 207). Thereafter, defendant was sentenced as promised to a concurrent term of five years imprisonment plus five years post-release supervision for each conviction (R 212-215). Appeal to the Appellate Division Defendant appealed to the Appellate Division, Fourth Department, arguing that the County Court erred in refusing to suppress the pistol because the police did not have the requisite reasonable suspicion to pursue him when he fled. 6 Specifically, defendant contended that despite the anonymous phone call reporting two men with guns, the police could not pursue him because aside from his immediate flight, there were no other circumstances which gave rise to reasonable susp1c10n. In a unanimous memorandum decision, the Appellate Division affirmed defendant's convictions, finding that the police pursuit was justified. In their De Bour analysis (People v De Bour, 40 NY2d 210 [1976]), the Appellate Division found that police had a "founded suspicion that criminality was afoot" at the inception of the encounter based upon the anonymous report which gave a general description of two black males carrying handguns at a certain location, which was corroborated one minute later by police (People v Gayden, 126 AD3d 1518 [4th Dept 2015]). Thereafter, defendant's immediate flight once Officer Jorge exited his vehicle elevated the nature of the encounter, generating reasonable suspicion, which justified pursuit (id.). Finally, when defendant abandoned his gun during the pursuit, the police had the requisite probable cause to arrest (id. at 1518-1519). 7 ARGUMENT SUMMARY In his brief, defendant contends that the police did not have the requisite reasonable suspicion to pursue him when he fled. The determination of whether the police possessed reasonable suspicion is a mixed question of law and fact which is beyond this Court's review so long as the determination is supported by the record (CPL 470.35; People v Brown, 25 NY3d 973 [2015]). Moreover, there is ample record support to justify the lower court's finding of reasonable suspicion (see People v Pines, 99 NY2d 525 [2002]). In any event, case law is clear that the police possessed the requisite reasonable suspicion to pursue the fleeing defendant. The anonymous report of two men with guns at a certain location supported a founded suspicion that criminality was afoot, generating the common-law right of inquiry (see People v Moore, 6 NY3d 496,499-500 [2006]). Defendant and Thacker were the only two people observed at that location one minute after the dispatch and fit the general description given in the anonymous tip. Thereafter, defendant's immediate flight upon observing an approaching police officer elevated the nature of the encounter, and supported a reasonable suspicion that a crime was at hand (id. at 501). 8 POINT I Whether the police had reasonable suspicion to pursue defendant is a mixed question of law and fact which is only reviewable by this Court for record support. Whether police had reasonable suspicion to pursue defendant is a mixed question of fact and law which is beyond this Court's review so long as the determination is supported by the record (see People v Brown, 25 NY3d 973 [2015]; People v William, 19 NY3d 891 [2012]). Here, there is ample support in the record for the lower court's finding of reasonable suspicion. An anonymous report of two black males with handguns, one wearing a black t-shirt and the other wearing a white t-shirt with red lettering, directed police to the middle of Ellison Street, near the Webster Street intersection (R 92-93; see People v Moore, 6 NY3d 496, 500 [2006]; People v Stewart, 41 NY2d 65, 69 [1976]). Officer Bongiovanni arrived at the location within one minute of the dispatch, and observed two men who fit this general description (R 93-94, 131-132). Nobody else was in the area described in the anonymous report (R 55). Officer Bongiovanni radioed that he was stepping out with two individuals who fit the description, and as he approached them, Thacker fled while defendant continued to walk on Ellison Street (R 95-96). Officer Jorge arrived on scene at this time, observed Officer Bongiovanni pursuing Thacker, and also 9 observed defendant walking towards him (R 43, 64). As Officer Jorge stepped out of his vehicle to speak with him, defendant yelled "oh shit," and fled (R 43-44, 64, 68, 101-102; see Moore, 6 NY3d at 500). Officer Jorge gave chase, observed defendant with his hands around his waistband and a gun fall from defendant's waist (R 44-45, 51, 68, 71-73). Despite this evidence, defendant contends that there is no record support justifying the police officer's initial encounter because he was wearing a blue jacket, instead of the white t-shirt, and therefore did not exactly match the description given in the anonymous report. Defendant points to the testimony of Officer Bongionvanni, who initially testified he observed that defendant appeared to be wearing a white t-shirt, which was sticking out from underneath his blue coat (R 94, 115). However, once Officer Bongiovanni was shown a black and white arrest photograph of the defendant during cross-examination, he acknowledged that defendant appeared to be wearing a dark colored t-shirt underneath his coat (R 139). Notably, this arrest photograph only showed defendant's head and neck area and did not show the color of the t-shirt sticking out from underneath his jacket (R 139). Officer Bongiovanni further testified on redirect examination that he recalled defendant wearing "a light colored shirt coming out from underneath" his jacket (R 140). In any event, defendant' s contention disregards the many lO similarities between the observations of the suspects and the description given in the anonymous report: the tip accurately described the sex and race of the suspects, the color of Thacker's t-shirt, that the two suspects were walking together, their temporal and spatial proximity to the area of the report, and that fact that there was no one else on Ellison Street (R 55, 93-94, 115, 131-132, 145). The only difference was the fact that defendant was wearing a blue coat - which he could have easily put on between the time of the call and Officer Bongiovanni's arrival one minute later (see People v Williams, 30 AD3d 980 [4th Dept 2006], lv denied 7 NY3d 852 [2006]). "While the two men did not perfectly match the description in the radio [dispatch], there were enough similarities to provide the police with, at a minimum, the right to make a common law inquiry" (People v Cinton, 304 AD2d 454 [1st Dept 2003], lv denied 100 NY2d 579 (2003]). As discussed below, the similarities between the anonymous report and the police officer's observations once on the scene, followed by defendant's immediate flight, justified the ensuing police pursuit (see generally People v Woods, 98 NY2d 627 [2002] [affirming a determination of reasonable suspicion where the defendant matched the description of a robbery victim but then fled from police officers who responded to the 91 1 call]). l1 POINT II The police had the requisite reasonable suspicion to pursue defendant when he immediately fled from them because they were responding to an anonymous report of two men with guns and defendant and his codefendant fit the general description. When assessing the legality of a street encounter under the Fourth Amendment and its New York counterpart, the ultimate touchstone of the analysis is the "reasonableness" of the police conduct (see People v Batista, 88 NY2d 650, 653 [ 1996]). "In detennining whether a search and seizure is reasonable, courts must undertake a dual inquiry: 'whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place'" (People v William II, 98 NY2d 93, 98 [2002], quoting Terry v Ohio, 392 US 1, 20 [1968]). A. The initial police contact with defendant was justified under the common-law right of inquiry. An anonymous phone tip of a "man with a gun" which provides only a general description and location produces a belief that criminality is afoot, giving police the common-law right of inquiry (People v Moore, 6 NY3d 496,499-500 12 [2006]; People v Benjamin, 51 NY2d 267 [1980]; People v Stewart, 41 NY2d 65,69 [1976]).1 Such is the case here. Officer Jorge testified that after hearing the dispatch of the anonymous report and Officer Bongiovanni's subsequent radio broadcast that he was stepping out with two men who fit the description, he arrived at the scene and observed Thacker fleeing from Officer Bongiovanni and defendant walking down Ellison Street towards his car. Consistent with the common-law right of inquiry, Officer Jorge testified that he then parked his vehicle and exited to speak with defendant (R 43-44, 64, 68; see Moore, 6 NY3d at 500 ["the anonymous tip triggered only the police officer's common-law right of inquiry ... [which] authorized the police to ask questions of defendant-and to follow defendant while attempting to engage him-but not to seize him in order to do so"]). Officer Jorge testified during direct examination that when he arrived on scene he intended only to speak with defendant, and only pursued defendant once he fled (R 43-44, 68, 73). Although Officer Jorge stated on cross-examination that he did want "to talk or detain" defendant (R 68), his subjective intent is irrelevant 1 Although not applicable to the facts of this case, certain anonymous tips may provide police with reasonable suspicion a crime is at hand if the tip satisfies both prongs of the Aguilar- Spinelli test (or totality of the circumstances test) (see People v Argyris, 24 NY3d 1138, 1140- 1141 [2014]), or where the tip contains predictive information of criminality (see Moore, 6 NY3d at499). 13 for a Fourth Amendment analysis so long as his actions during this street encounter were reasonable (see generally People v Robinson, 97 NY2d 341, 349 [200 1 ], citing Whren v United States, 517 US 806 [ 1996]). As police are duty bound to respond to and investigate reports of armed suspects (People v Salaman, 71 NY2d 869, 870 [1988]; People v Stoller, 42 NY2d 1052 [1977]), Officer Jorge's conduct at the inception of this street encounter- exiting his vehicle to speak with defendant- was reasonable. Likewise, Officer Bongiovanni's conduct at the inception of this street encounter was reasonable and consistent with the common-law right of inquiry (see Moore, 6 NY3d at 500). Officer Bongiovanni parked his vehicle 50-60 feet away from the suspects, and did not activate his lights or sirens when approaching them (R 94-95). Although he testified that he "slowly jogged" to catch up with the suspects, this was only because of traffic congestion (R 94). Thereafter, Officer Bongiovanni did not pursue Thacker until he actively fled (R 43, 95, 96, 97, 118). Officer Bongiovanni did not interact with defendant, who continued to walk down Ellison Street until he observed Officer Jorge exiting his vehicle (R 43-44, 101- 102, 118). Nonetheless defendant contends that the police conduct at the inception of this street encounter was not reasonable because the anonymous report contained 14 such an insufficient description of the suspects, the police had only an objective, credible reason to request information from defendant, rather than common-law right of inquiry. Concerns over the reliability of anonymous tips are not new, and certainly some "anonymous tips are so devoid of reliability, either inherently or by lack of corroborating factors, that they warrant either no response at all or necessitate further inquiry before intrusive police measures would be permissible" (People v De Bour, 40 NY2d 210, 225-226 [1976]; compare People v Argyris, 24 NY3d 1138, 1165 [2014] [Abdus-Salaam, J., concurring] ["illegal gun possession, naturally tends to be described in sparse fashion because it does not involve many detailed movements, and one can accurately sum up someone's illegal gun possession by saying the person is holding a gun in a public place"]). Indeed, had the police arrived on-scene and observed the situation was not as described in the anonymous report, they would be free to discredit the tip and continue their investigation elsewhere, or abandon it altogether (see Argyris, 24 NY3d at 1163 [Abdus-Salaam, J., concurring]; compare William II, 98 NY2d at 99). However, the anonymous report here provided police with a sufficient description to justify the common-law right of inquiry at the inception of the encounter, consistent with this Court's prior decisions. For example, in People v La Pene, the companion case to People v De Bour (40 NY2d at 222), this Court 15 found that an anonymous report of a black male with a gun, wearing a red shirt in "Jean's Bar" would have entitled police to an "inquiry . . . to determine whether or not a crime was occurring and whether or not [defendant] was the perpetrator" (id. at 226). Likewise, in Moore, this Court found that a general description of a "male Black with a gun, described as approximately 18 years of age, wearing a gray jacket and red hat" triggered the common-law right of inquiry (Moore, 6 NY3d at 497, 500). B. Defendant's immediate flight from police generated the requisite reasonable suspicion to justify police pursuit. The common-law right of inquiry may be elevated to reasonable suspicion, justifying police pursuit of a suspect, if police "obtain additional information or make additional observations of suspicious conduct sufficient to provide reasonable suspicion of criminal behavior" (Moore, 6 NY3d at 500-501~ see also Benjamin, 51 NY2d at 270 [a police officer, responding to an anonymous phone tip of men with guns, should not be "prevented from observing circumstances at the scene and, if necessary, taking due precaution for his own safety"]). A suspect's flight, coupled with information received in an anonymous tip, furnishes a basis for reasonable suspicion (Moore, 6 NY3d at 501 ["Had defendant, for example . .. actively fled from the police, such conduct, when added to the f6 anonymous tip (of a man with a gun), would have raised the level of suspicion"]; Argyris, 24 NY3d at 1162 [Abdus-Salaam, J., concurring] [Hthe officer's personal observation of the suspect engaged in suspicious activity may, in combination with the tip, give rise to reasonable suspicion or probable cause"]; see also People v Holmes, 81 NY2d 1056, 1058 [ 1993]). Accordingly, defendant's shout of "oh shit" and immediate flight upon observing Officer Jorge exit his vehicle, when combined with the infonnation from the anonymous report, generated a reasonable suspicion a crime was being committed and justified Officer Jorge's pursuit of the fleeing defendant (see Moore, 6 NY3d at 501; People v Martinez, 80 NY2d 444, 448 [1992]).2 Indeed, the record is clear that Officer Jorge did not pursue defendant until defendant actively fled (R 44, 68, 73). Moreover, Officer Jorge's pursuit of defendant was reasonable given the quickly developing circumstances (see People v Chestnut, 51 NY2d 14, 23 [1980] ["Courts simply must not, in this difficult area of street encounters between private citizens and law enforcement officers, attempt to dissect each individual act by the policemen; rather, the events must be viewed and considered as a whole, remembering that reasonableness is the key principle when undertaking the task of 2 Reasonable suspicion ripened into probable cause to arrest when, moments after he began fleeing, defendant reached for his waistband and dropped a handgun (see People v Pines, 99 NY2d 525 [2002]; Martinez, 80 NY2d 448-449). 17 balancing the competing interests presented"]). The record shows that Officer Jorge considered this call to be of a serious nature despite coming from an anonymous source (R 54, 70), and only intended to speak with defendant until the defendant fled (R 68, 73). Accordingly, under the facts of this case, the County Court and Appellate Division's finding of reasonable suspicion to justify Officer Jorge's pursuit of defendant is consistent with the Fourth Amendment analysis in People v Moore (6 NY3d 496 [2006]), People v Williams II (98 NY2d 93 [2002]), and Florida v J.L. (529 US 266 [2000]), all of which involved anonymous reports of a man with a gun. However, unlike in those cases, here the police officer's additional on-scene observations of suspicious conduct - i.e. flight- generated reasonable suspicion. In Moore, police received an anonymous tip of a black male with a gun, approximately 18 years of age, wearing a gray jacket, and red hat, and involved in a dispute at a certain location (6 NY3d at 497). Police arrived within a minute of the dispatch and did not observe a dispute taking place, but did observe a suspect who fit the description begin to walk away once they exited their vehicle. Without attempting any verbal inquiry, the responding officers drew their guns, instructed the suspect to freeze and frisked him, recovering a handgun (id. at 497-498). In granting suppression of the gun, this Court noted that "the anonymous tip triggered only the police officers' common-law right of inquiry," and the 18 defendant's act of "merely walking away" did not raise the level of suspicion to reasonable suspicion (id. at 500). However, the Moore court noted that the right of inquiry would have been elevated to reasonable suspicion "[h]ad defendant, for example ... actively fled from the police" (id. at 500-501). Such is our case. Similarly, in William II, police received an anonymous report that an armed man named "Will" had just been involved in a drive-by shooting, provided a physical description and location of the suspect, and indicated he was accompanied by two Caucasian males (98 NY2d at 97). When police arrived, the suspect was not dressed in a manner that would permit concealment of a weapon, and police did not have any reason to believe that defendant, who fled the scene, had been handed the weapon by the suspect. Police caught defendant and found him in possession of marijuana (id. at 97). In our case, unlike William II, police officers' observations corroborated rather than discredited the report of gun possession. Moreover, in our case the defendant fit the general description of the armed suspect, rather than a mere unarmed companion. Finally, in Florida v J.L., police responded to an anonymous report of a man with a gun, which described the suspect as a young black male wearing a plaid shirt and standing at a particular bus stop (529 US at 268). Police located a suspect who matched the description, immediately frisked him, and recovered a handgun in his pocket (id. at 268). The United States Supreme Court upheld 19 suppression of the gun, finding that the frisk was not supported by reasonable suspicion because the anonymous report was not corroborated by sufficient indicia of reliability, such as police observations of conduct suggestive of concealed criminal activity or any indicia of firearm possession (id. at 268-270). In our case, however, defendant exhibited conduct suggestive of criminal activity by yelling "oh shit," and immediately fleeing upon observing the police officer approach. Accordingly, as case law shows, suppression of the gun should be denied in our case because defendant's flight from Officer Jorge, coupled with the infonnation received in an anonymous tip, furnished a basis for reasonable suspicion which justified police pursuit of defendant. 20 CONCLUSION The order of the Appellate Division should be affirmed. Dated: April 6, 2016 21 Respectfully submitted, SANDRA DOORLEY MfZJ Dis---t 1 ~ BY: DANIEL GROSS Assistant District Attorney Ebenezer Watts Building Suite 832 Rochester, NY 14614 STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- JOHN GAYDEN Defendant-Appellant. STATE OF NEW YORK) COUNTY OF MONROE) SS: CITY OF ROCHESTER) AFFIDAVIT OF SERVICE BY MAIL APL-20 16-00006 Catherine McFarlane, being duly sworn, deposes and says that deponent is not a party to this action, is over the age of eighteen ( 18) years and resides at Rochester, New York. That on the 7th day of April, 2016, deponent served three (3) copies ofthe brief for Respondent, upon David R. Juergens, Esq., attorney for defendant-appellant in this action at 10 North Fitzhugh Street, Rochester, New York, 14614, by depositing a true copy ofthe same, enclosed in a postpaid properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State ofNew York. Sworn to before me this 7th day of April, 2015. Roxanne M. Emler Notary Puhlic, State of New York 01EM6203185 qualified in Monroe County commission expires MM. 30,~ 7 CATHERINE McFARLANE