| People v Mack |
| 2008 NY Slip Op 02383 [49 AD3d 1291] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Dayson Mack,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.),rendered July 22, 2005. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofcriminal possession of a weapon in the third degree (Penal Law § 265.02 [former (4)]).Contrary to defendant's contention, Supreme Court properly refused to suppress the handgunseized by the police from defendant's person as well as defendant's subsequent statements to thepolice. The record establishes that the officers had an articulable reason for approachingdefendant and his two companions to conduct a common-law inquiry, i.e., they had "a foundedsuspicion that criminal activity [was] afoot" (People v De Bour, 40 NY2d 210, 223[1976]). Specifically, the officers observed the three men standing on the sidewalk near twoboarded up drug houses, and at least one of the three men was drinking from a large bottlewrapped in a brown paper bag, which was a possible violation of the open container ordinance ofthe City of Syracuse (see generally People v Hollman, 79 NY2d 181, 190, 189-190[1992]; People v Hewitt, 247 AD2d 552 [1998], lv denied 92 NY2d 880, 926[1998]; People v Muhammad, 120 AD2d 937, 938 [1986]). The disproportionatelyfrightened reaction of defendant upon seeing the uniformed officers approach, his refusal toremove his hand from his pocket despite the repeated demands of one of the officers that he doso, his conduct in walking toward that officer with his hand in his pocket, and the fact that thearea in which the incident occurred was one in which violent crimes and shootings were commonprovided the officers with reasonable suspicion to believe that defendant posed a threat to theirsafety (see People v Hensen, 21AD3d 172, 176 [2005], lv denied 5 NY3d 828 [2005]; People v Robinson,278 AD2d 808, 809 [2000], lv denied 96 NY2d 787 [2001]; People v Pettis, 195AD2d 421 [1993]). The officer toward whom defendant was walking thus was justified ingrabbing defendant's elbow and in placing his hand over defendant's hand and pocket. In doingso, the officer felt the butt of a handgun, which led to the seizure of the loaded firearm fromdefendant's pocket. We conclude that the frisk was a[*2]"constitutionally justified intrusion designed to protect the safety ofthe officers" (Robinson, 278 AD2d at 809), and that the court properly refused tosuppress the evidence seized as a result thereof, as well as defendant's ensuing statements.Present—Scudder, P.J., Centra, Lunn, Fahey and Green, JJ.