| People v McCrary |
| 2010 NY Slip Op 02584 [71 AD3d 1049] |
| March 23, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v J.C.McCrary, Jr., Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Andrea M. DiGregorio of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Brown, J.),rendered January 25, 2007, convicting him of robbery in the first degree (two counts), criminalpossession of a weapon in the second degree, and criminal possession of a weapon in the thirddegree (three counts), upon a jury verdict, and imposing sentence. The appeal brings up forreview the denial, after a hearing (Calabrese, J.), of those branches of the defendant's omnibusmotion which were to suppress physical evidence and identification testimony.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court properly determined that thearresting officer had reasonable suspicion to pursue and stop him, and that the reasonablesuspicion ripened into probable cause to arrest. The evidence at the suppression hearingestablished that the defendant matched the general description of a perpetrator of a robbery givenin a radio dispatch. The evidence also established that the arresting officer spotted the defendantin an area where other police officers had seen him flee. Finally, the evidence established that thedefendant had been running from the direction of the reported site of the robbery minutes afterthe robbery took place, refused to stop when told to do so, and, after a brief pursuit, was foundhiding in a bush. Under these circumstances, the hearing court properly denied those branches ofthe defendant's omnibus motion which were to suppress physical evidence and identificationtestimony (see People v Morales, 58 AD3d 873, 874 [2009]; People v Gilyard,32 AD3d 1046 [2006]; People v Johnson, 174 AD2d 694, 694-695 [1991]).
Furthermore, contrary to the contention of the defendant, the trial court did notimprovidently exercise its discretion in denying his motion, made during the trial, to reopen thesuppression hearing. The defendant failed to demonstrate that he had discovered additionalpertinent facts which he could not have discovered with reasonable diligence before thedetermination of those branches of his omnibus motion which were to suppress certain physicalevidence and identification testimony, which would materially affect or have affected thatdetermination (see CPL 710.40 [4]; People v Clark, 88 NY2d 552, 555 [1996];People v Fuentes, 53 NY2d 892, 894 [1981]).[*2]
The defendant's remaining contentions are unpreservedfor appellate review (see CPL 470.05 [2]), and, in any event, are without merit. Skelos,J.P., Covello, Balkin and Sgroi, JJ., concur.