| People v Norman |
| 2009 NY Slip Op 07046 [66 AD3d 1473] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Keith D.Norman, Jr., Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), rendered February15, 2006. The judgment convicted defendant, upon his plea of guilty, of criminal possession of aweapon in the second degree, criminal possession of a weapon in the third degree and recklessendangerment in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reducing the period of postrelease supervision imposed for criminal possession of a weaponin the third degree to a period of three years and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guiltyof, inter alia, criminal possession of a weapon in the second degree (Penal Law § 265.03[former (2)]) and criminal possession of a weapon in the third degree (§ 265.02 [former(4)]). Defendant contends that his arrest was not based upon probable cause and that CountyCourt therefore erred in refusing to suppress physical evidence seized as a result of that arrest.We reject that contention. Where hearsay information forms at least in part the basis for probablecause, the information must satisfy " 'the two-part Aguilar-Spinelli test requiring ashowing that the informant is reliable and has a basis of knowledge for the information imparted'" (People v Flowers, 59 AD3d1141, 1142 [2009]; see People vRios, 11 AD3d 641, 642 [2004], lv denied 4 NY3d 747 [2004]). Here, thestatements of the unnamed informant, together with the police officer's personal observations ofdefendant, provided the officer with probable cause to arrest defendant. According to theevidence presented at the suppression hearing, the officer observed a green van pursuing twomen on a moped, which was being driven at 2:00 a.m. without its headlight on. The officerpursued both the van and the moped and located them on a nearby street, whereupon he heard agunshot. The moped was driven toward and around the officer without stopping, and the driverof the van then approached the officer and informed him that the men on the moped had fired agun at him. The officer pursued the moped until it struck a curb. Defendant, the passenger, felloff the moped and fled on foot.
The People established the reliability of the unnamed informant, i.e., the driver of the van, byestablishing that his information " 'was received in a direct face-to-face encounter in which [theofficer was] able to observe [his] facial expressions and emotional state' " (Rios, 11AD3d at 642). In addition, the officer's own [*2]observations ofdefendant, including his flight upon being pursued by the officer, further established thereliability of the informant (see generally People v Lee, 258 AD2d 352 [1999], lvdenied 93 NY2d 900 [1999]; People v Spearman, 226 AD2d 180 [1996], lvdenied 88 NY2d 886 [1996]; People v Sloan, 178 AD2d 624 [1991], lvdenied 79 NY2d 953 [1992]). Contrary to the further contention of defendant, the recoveryof the gun discarded during his flight was lawful inasmuch as the officer's pursuit and detentionof defendant were lawful (see People v Leung, 68 NY2d 734, 736 [1986]; Sloan,178 AD2d 624 [1991]).
As the People correctly concede, however, the court erred in imposing a five-year period ofpostrelease supervision for criminal possession of a weapon in the third degree, a class D violentfelony offense (see Penal Law § 70.02 [1] [former (c)]; § 70.45 [former(2)]). We therefore modify the judgment by reducing the period of postrelease supervisionimposed for that offense to a period of three years, the maximum allowed (see People v Childres, 60 AD3d1278, 1279 [2009], lv denied 12 NY3d 913 [2009]; People v Brown, 52 AD3d 1237[2008], lv denied 10 NY3d 956 [2008]). The sentence as modified is not unduly harsh orsevere. Present—Hurlbutt, J.P., Martoche, Centra, Green and Gorski, JJ.