| People v Britt |
| 2009 NY Slip Op 08834 [67 AD3d 1023] |
| November 24, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jerome Britt, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ann Bordley ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling,J.), rendered September 20, 2007, convicting him of criminal possession of a weapon in the thirddegree, upon a jury verdict, and sentencing him to a determinate term of two yearsimprisonment, plus two years' postrelease supervision. The appeal brings up for review thedenial, after a hearing (Holdman, J.), of that branch of the defendant's omnibus motion whichwas to suppress physical evidence.
Ordered that the judgment is modified, on the law and as a matter of discretion in the interestof justice, by vacating the period of postrelease supervision imposed as part of the sentence; asso modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, KingsCounty, for the reimposition of a period of postrelease supervision in accordance herewith.
The hearing court properly determined that the arresting police officers had a foundedsuspicion that the defendant was engaged in criminal activity, warranting the common-law rightof inquiry, which, by virtue of the defendant's flight, ripened into reasonable suspicion to pursue(see People v Matienzo, 81 NY2d 778, 780 [1993]; People v De Bour, 40 NY2d210, 222-223 [1976]; People vWynn, 25 AD3d 576, 577 [2006]; People v Riley, 290 AD2d 568 [2002];People v Largo, 282 AD2d 548, 549 [2001]). Further, because the pursuit of the defendantwas justified, the gun he discarded during the pursuit was not subject to suppression as the resultof unlawful police behavior (see People v Wynn, 25 AD3d at 577; People vRiley, 290 AD2d at 568). Accordingly, the hearing court properly declined to suppress thatgun.
Under the circumstances, the minimum period of postrelease supervision that the sentencingcourt could have imposed was 1½ years (see Penal Law § 70.45 [2] [e]).However, our review of the record gives rise to a concern that the sentencing court, which, interalia, incorrectly indicated that "the minimum" period of postrelease supervision that could beimposed was two years, misapprehended its sentencing discretion with respect to that period.Accordingly, as the People correctly concede, the period of postrelease supervision imposedmust be vacated, and the matter remitted for reconsideration of the length of that period and thereimposition of a period of postrelease supervision thereafter (cf. People v Reynolds, 57 AD3d336 [2008]; People v Yant, 223 AD2d 747 [1996]; People v Jeffries, 166AD2d 665, 666 [1990]). Covello, J.P., Santucci, Chambers and Lott, JJ., concur.