| People v Davis |
| 2010 NY Slip Op 09023 [79 AD3d 1267] |
| December 9, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Ahmeek Davis,Appellant. |
—[*1] P. David Soares, District Attorney, Albany, for respondent.
Kavanagh, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered January 23, 2009, convicting defendant upon his plea of guilty of the crime of criminalpossession of a weapon in the second degree.
At approximately 1:00 p.m. on June 21, 2008, Police Officer Edward Markham was on patrol andreceived a transmission from a City of Albany Police Department dispatcher indicating that a blackmale had exited the passenger seat of a late model white Ford Mustang and pointed a handgun at agroup of people standing in the vicinity of Dana Avenue and Knox Avenue in the City of Albany.Markham was also informed by the dispatcher that the black male had fled the scene in the vehicle,which was being driven by another black male. Moments later, Markham received another radiotransmission, this time from a police officer on patrol in a nearby area, that the officer was in pursuit of alate model white Ford Mustang that fit the description of the vehicle given in the initial radio dispatch.Markham joined the pursuit and, coming upon the vehicle, attempted to initiate a traffic stop. The driverof the Ford Mustang refused to comply and continued driving two blocks before stopping the vehicle inthe middle of the street. At that time, the passenger—a black male who fit the description givenin the radio dispatch—suddenly jumped out of the vehicle and fled. While other police officerspursued the passenger, Markham approached the Ford Mustang, took the driver into custody andrecovered a .22 caliber handgun and several rounds of ammunition that were on the front passengerseat. [*2]Defendant was apprehended by the other police officers ashort distance from the scene and, moments later, was identified by Markham as the passenger of thevehicle who had fled the area. Defendant was arrested and approximately seven grams of crackcocaine was recovered from his person. Later that day, a witness, during a photographic arrayconducted by the police, identified a photograph of defendant as the individual who had brandished thehandgun on the street.
Defendant was charged with criminal possession of a weapon in the second degree and criminalpossession of a controlled substance in the third and fourth degrees. He subsequently moved tosuppress the cocaine taken from his person at the time of his arrest, as well as the identification made ofhim by the eyewitness. After that motion was denied, defendant, while specifically reserving his right toappeal County Court's decision on the motion to suppress, entered a guilty plea to criminal possessionof a weapon in the second degree. He was sentenced as a second felony offender to 9½ years inprison, plus five years of postrelease supervision. Defendant now appeals.
The principal argument made by defendant on this appeal is that his arrest by the police was illegaland the evidence obtained as a result of it—the cocaine recovered from his person and theidentification later obtained from the eyewitness—should be suppressed.[FN*]We disagree.
Contrary to defendant's assertion, the content of the radio dispatch and, in particular, its descriptionof the incident, as well as that of the vehicle and its occupants, gave the police the right to stop the FordMustang when they came upon it and, at the very minimum, make appropriate inquiry of its occupants(see People v Young, 68 AD3d1761, 1761 [2009], lv denied 15 NY3d 780 [2010]; People v Cash J.Y., 60 AD3d 1487, 1488 [2009], lv denied 12NY3d 913 [2009]; People v Jogie, 51AD3d 1038, 1039 [2008], lv denied 11 NY3d 789 [2008]; People v Parker, 50 AD3d 603, 604[2008], lv denied 11 NY3d 740 [2008]). The refusal of the driver to immediately heed policerequests that he stop the vehicle, and the passenger's abrupt departure from the scene upon beingconfronted by the police, served to confirm Markham's suspicion that the occupants of this vehiclewere involved in the incident reported by the dispatcher and gave him probable cause to make an arrest(see People v Reyes, 69 AD3d523, 525 [2010], appeal dismissed 15 NY3d 863 [2010]; People v McNair, 36 AD3d 1073,1075 [2007], lv denied 9 NY3d 847 [2007]; People v McDonald, 285 AD2d 615,616 [2001]). Given that Markham had been told only moments earlier that a firearm had beenbrandished in a threatening manner on a public street, he had a reasonable basis to be concerned for hissafety and ample justification to take whatever steps were necessary to secure both the vehicle and itsremaining occupants. Only then did Markham recover the firearm and ammunition from the vehicle'spassenger seat, and then, moments later, identify defendant as the person he had seen flee the scenewhen the vehicle came to a stop. On these facts, probable cause existed for defendant's arrest and hismotion to suppress was properly denied.
Defendant also challenges his sentence, arguing that he entered his guilty plea with theunderstanding that County Court would, as part of his sentence, impose a three-year term ofpostrelease supervision. While the term of postrelease supervision imposed by County Court did not"conform to the term indicated at the plea proceeding," defendant did not object to the sentence asimposed and has not preserved this claim by seeking appropriate relief before the [*3]sentencing court (People v Murray, 15 NY3d 725, 726-727 [2010]). In any event,defendant's status as a second felony offender required that a five-year term of postrelease supervisionbe imposed as part of his sentence (see Penal Law § 70.45 [2]).
Peters, J.P., Spain, Lahtinen and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Defendant did not seek to suppressthe firearm or the ammunition found in the car.