| People v Collado |
| 2010 NY Slip Op 03484 [72 AD3d 614] |
| April 29, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Bienvenido Collado, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Jaime Bachrach of counsel), forrespondent.
Judgment, Supreme Court, New York County (Herbert J. Adlerberg, J.H.O., at suppressionhearing; James A. Yates, J., at suppression decision; William A. Wetzel, J., at plea; Ronald A.Zweibel, J., at trial and sentence), rendered July 31, 2008, convicting defendant, after a jury trial,of criminal possession of a controlled substance in the fourth degree, and also convicting him,upon his plea of guilty, of criminal possession of a controlled substance in the third degree, andsentencing him to concurrent terms of 5½ years and 6½ years, respectively,unanimously affirmed.
The court properly denied defendant's suppression motion. Police officers noticed thatdefendant physically resembled a sketch of a person who had committed a rape two days before,and that he was near a subway station where someone had been using the rape victim'sMetroCard. An officer specifically testified that, from his vantage point, defendant actuallylooked like the person in the sketch (seePeople v Joseph, 10 AD3d 580 [2004], lv denied 3 NY3d 740 [2004]). Havingviewed the sketch and defendant's arrest photo, we perceive no basis to discredit the officer'stestimony. We need not determine whether the police had reasonable suspicion to stop and friskdefendant (see People v Baker, 264 AD2d 692, 692 [1999], lv denied 94 NY2d901 [2000]). Even if the police were only authorized to conduct a common-law inquiry at thatpoint, their level of suspicion was elevated to reasonable suspicion for a stop and frisk whendefendant "actively fled from the police" (People v Moore, 6 NY3d 496, 500-501 [2006]). Defendant, whohad been in the process of entering a cab, made eye contact with one of the officers and, insteadof departing in the cab, immediately ran into a store. On appeal, defendant argues that his flightwas equivocal because the officers were in plain clothes and in an unmarked car, and he couldhave been fleeing because mysterious strangers were staring at him. However, the circumstancespermitted the officers to reasonably conclude that the most likely explanation for defendant'sbehavior was that he had recognized them as the police (see e.g. People v Byrd,304 AD2d 490 [2003], lv denied 100 NY2d 579 [2003]; People v Pines, 281AD2d 311, 311-312 [2001], affd 99 NY2d 525 [2002]; People v Randolph, 278AD2d 52 [2000], lv denied 96 NY2d 762 [2001]; People v Ward, 201 AD2d 292[1994], lv denied 84 NY2d 834 [1994]). Given the violent nature of the crime theofficers reasonably suspected defendant had committed, they were [*2]authorized to frisk defendant to ensure their safety (see Peoplev Mack, 26 NY2d 311, 317 [1970], cert denied 400 US 960 [1970]).
We perceive no basis for reducing the sentence. Concur—Nardelli, J.P., McGuire,Acosta, Freedman and RomÁn, JJ.