| People v Gray |
| 2010 NY Slip Op 06857 [77 AD3d 1308] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, v Steve J. Gray,Respondent. |
—[*1] Timothy P. Donaher, Public Defender, Rochester (Timothy S. Davis of counsel), fordefendant-respondent.
Appeal from an order of the Monroe County Court (John J. Connell, J.), dated September 22,2008. The order granted those parts of defendant's omnibus motion to suppress tangible property andstatements.
It is hereby ordered that the order so appealed from is unanimously reversed on the law, thoseparts of the motion to suppress tangible property and statements are denied and the matter is remittedto Monroe County Court for further proceedings on the indictment.
Memorandum: The People appeal from an order granting those parts of defendant's omnibusmotion to suppress tangible property found both in a residence pursuant to a search warrant and ondefendant's person, as well as statements made by defendant at the police station. We agree with thePeople that reversal is required.
We note at the outset that County Court erred in determining that the police lacked reasonablesuspicion to pursue defendant. "[A] defendant's flight in response to an approach by the police,combined with other specific circumstances indicating that the suspect may be engaged in criminalactivity, may give rise to reasonable suspicion, the necessary predicate for police pursuit" (People vSierra, 83 NY2d 928, 929 [1994]). Here, defendant was the sole occupant of a residence wherethe police were about to execute a valid search warrant, and the police observed defendant run fromthe front porch into the residence and out the back door of the residence. Defendant then climbed overa nine-foot fence topped by barbed wire, fell to the ground, and continued to run before beingapprehended by the police.
We further conclude that the court erred in suppressing the tangible property seized from theresidence and defendant's person, as well as defendant's statements made at the police station, basedon its determination that the tangible property and statements were the result of an illegal pursuit andarrest. Upon apprehending defendant and arresting him, the police returned him to the residence thatwas the subject of the search warrant. The tangible property found in the residence pursuant to the validsearch warrant, i.e., a handgun, crack cocaine, an electronic scale and unused baggies, was not subjectto suppression (see People v Aseltine, 155 AD2d 819, 820 [1989]). The police then searcheddefendant's person and found, inter alia, a bag of marihuana and [*2]abag of crack cocaine. That tangible property also was not subject to suppression inasmuch as thesearch resulting in the seizure of that property was incident to a lawful arrest (see People v Johnson, 71 AD3d 1521,1522 [2010]). Later, at the police station, defendant made the disputed statements to the police. Evenassuming, arguendo, that the pursuit of defendant and his arrest were illegal, we would conclude thatdefendant's statements made three hours later at the police station were "sufficiently attenuated from theillegal arrest to be purged of the taint created by the illegality" (People v Russell, 269 AD2d771, 772 [2000]). Present—Smith, J.P., Fahey, Sconiers, Pine and Gorski, JJ.