| People v Amuso |
| 2007 NY Slip Op 07710 [44 AD3d 781] |
| October 9, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Michael Amuso, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Anne C. Feigus ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (McKay, J.),rendered March 24, 2004, convicting him of robbery in the first degree, upon a jury verdict, andimposing sentence. The appeal brings up for review the denial, after a hearing (Gary, J.), of thatbranch of the defendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
The defendant argues, inter alia, that the police pursued and arrested him in violation of hisconstitutional rights, and that the physical evidence seized as a result of the pursuit and his arrestshould have been suppressed. This contention is without merit.
Within approximately 10 minutes of receiving a radio broadcast concerning a shooting in anearby subway station in lower Manhattan, one of three undercover officers canvassing forsuspects observed the defendant approaching and remarked that he fit the description of one ofthe suspects. When one of the officers attempted to make eye contact with the defendant, thedefendant stopped, looked around as if deciding in which direction he should go, changed hisdirection of travel, and walked behind a parked garbage truck. The officers followed, but did notfind the defendant behind the truck. However, the officers heard leaves rustling in an adjacentmaintenance area for Battery Park. The area was completely enclosed by a fence, secured withchain, and marked with a "no trespassing" sign. Further, at the time (approximately 3:05 a.m.),the park [*2]was closed to the public. When one of the officerssaid, "Police. Don't move. You, in the leaves, show yourself," the defendant stood up. Theofficers recognized the defendant as the man they had just observed. When the defendant wasordered to show his hands, he jumped the fence and fled. However, the defendant was locatedand arrested shortly thereafter for criminal trespass. A search of his person revealed, inter alia, aMetroCard stolen from the complainant in Brooklyn. A search of the maintenance area of thepark revealed a backpack containing, inter alia, a jacket that had a handgun in the pocket. Thedefendant admitted ownership of the backpack, but he did not testify at the suppression hearing.
On appeal, the defendant concedes that he was arrested in close spatial and temporalproximity to the subway shooting. However, he argues that the conduct of the police officers wasnot justified at its inception nor reasonably related in scope to the circumstances which renderedits initiation permissible. At a minimum, he asserts, the police never possessed the requisite"reasonable suspicion" needed to pursue and arrest him. Thus, he argues, all physical evidenceobtained as a result of his arrest should have been suppressed. However, the record supports thehearing court's determination that the conduct of the undercover officers was at all times withinthe parameters articulated in People v De Bour (40 NY2d 210 [1976]), and its progeny.Thus, suppression was properly denied.
Based on the facts and circumstances established at the hearing, the undercover officers,when they first observed the defendant, were authorized to approach with a request forinformation, the least intrusive form of inquiry permitted under De Bour (see Peoplev De Bour, 40 NY2d 210 [1976]). Further, although the defendant possessed theconstitutional right not to respond to such inquiries and to remain silent, and to walk or run away,the officers were not required to merely abort their inquiries upon such a response (see Peoplev Howard, 50 NY2d 583, 590 [1980]; People v Sobotker, 43 NY2d 559, 564 [1978];People v Grunwald, 29 AD3d33 [2006]). Rather, the officers were entitled to continue observation of the defendant, andto endeavor to conclude their inquiries, provided they did so in an unobtrusive manner that didnot limit the defendant's freedom of movement (see People v Howard, 50 NY2d 583, 590[1980]; People v Sobotker, 43 NY2d 559, 564 [1978]; People v Grunwald, 29 AD3d 33[2006]; People v Lopez, 169 AD2d 782 [1991]; People v Dickerson, 153 AD2d897 [1989]). Here, the officers permissibly proceeded behind the garbage truck pursuant to theirrequest for information. Once permissibly there, the officers made observations sufficient toestablish probable cause to arrest the defendant for criminal trespass (see People v Lightfoot, 22 AD3d865 [2005]; People v Starr, 221 AD2d 488, 489 [1995]). The evidence seized fromthe defendant's person pursuant to that lawful arrest was properly admitted into evidence in theinstant prosecution for robbery in the first degree (see People v Davis, 32 AD3d 445 [2006]).
Further, the backpack and its contents were properly admitted into evidence as having beenabandoned by the defendant (see People v Ramirez-Portoreal, 88 NY2d 99 [1996]). Thedefendant's leaving of the backpack and its contents in a public park was not a direct andspontaneous response to any illegal police activity, but was the intentional and voluntary productof a considered judgment to waive any privacy interest therein (see People vRamirez-Portoreal, 88 NY2d 99 [1996]; People v Oliver, 39 AD3d 880 [2007]).
The defendant was afforded meaningful representation (see People v Benevento, 91NY2d 708, 712 [1998]).
The defendant's remaining contention is unpreserved for appellate review, and we [*3]decline to review it in the interest of justice (see People v Davis,213 AD2d 665 [1995]; People v Doby, 178 AD2d 427 [1991]). Miller, J.P., Ritter,Goldstein and Dickerson, JJ., concur.