| People v Lopez |
| 2010 NY Slip Op 02348 [71 AD3d 1518] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Anthony C.Lopez, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), renderedJanuary 3, 2007. The judgment convicted defendant, upon his plea of guilty, of attemptedrobbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofattempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [4]), defendantcontends that he was forcibly detained without reasonable suspicion and thus that County Courterred in refusing to suppress evidence and statements obtained as a result of the illegal detention.We reject that contention.
At 2:33 a.m. a police officer received a dispatch concerning an "armed gunpoint robbery,"and that dispatch described the suspects as two black males, one on a bicycle and one on foot,wearing dark hooded sweatshirts or jackets. Within five minutes of the dispatch and two to threeblocks of the crime scene, the officer observed defendant, who generally matched the descriptionof the suspects, walking on the sidewalk. No one else was in the area. Although the officer'srequest to defendant that he "hang on a second" did not constitute a forcible detention requiringreasonable suspicion (see People v Bent, 206 AD2d 926 [1994], lv denied 84NY2d 906 [1994]; see also People v Reyes, 199 AD2d 153, 154-155 [1993], affd83 NY2d 945 [1994], cert denied 513 US 991 [1994]), the officer's subsequent frisk ofdefendant required either " 'a reasonable suspicion that [defendant] has committed or is about tocommit a crime' . . . [or] 'a reasonable suspicion that the [officer was] in physicaldanger and that defendant poses a threat to [his] safety' " (People v Stevenson, 273 AD2d826, 827 [2000]; see generally People v Watson, 96 AD2d 1066, 1067 [1983]).
Here, the officer testified at the suppression hearing that his only ground for friskingdefendant was the "nature of the call . . . [being] a gunpoint robbery." Defendantengaged in no furtive acts and there were no bulges observed under his clothing (cf. People v Flemming, 59 AD3d1004 [2009], lv denied 12 NY3d 816 [2009]; People v Robinson, 278 AD2d808 [2000], lv denied 96 NY2d 787 [2001]). Thus, the officer's frisk required areasonable suspicion that defendant committed the gunpoint robbery. Contrary to defendant'scontention, we conclude that the officer had the requisite reasonable suspicion "based upon thegeneral description of the perpetrator [that] [*2]matched thedescription of the defendant, the close proximity of the defendant to the site of the crime, and theshort passage of time between the commission of the crime and the observation of the defendant"(People v Hines, 46 AD3d 912,913 [2007], lv denied 10 NY3d 812 [2008]; see People v Owens, 39 AD3d 1260, 1261 [2007], lvdenied 9 NY3d 849 [2007]; People v Hunt, 306 AD2d 497, 498 [2003], lv denied1 NY3d 573 [2003]). Present—Smith, J.P., Centra, Lindley, Sconiers and Pine, JJ.