| People v Pirillo |
| 2010 NY Slip Op 08651 [78 AD3d 1424] |
| November 24, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Justin J. Pirillo,Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Thomas D. Jackson Jr. of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Broome County (Cawley, J.),rendered October 7, 2009, convicting defendant upon his plea of guilty of the crime of burglary in thesecond degree.
After being charged in a four-count indictment, defendant moved to suppress physical evidenceand to sever from each other the two counts charging burglary in the second degree. County Courtdenied those motions. Defendant then pleaded guilty to one count of burglary in the second degree insatisfaction of the indictment. The court imposed the agreed-upon prison sentence of five years, withfive years of postrelease supervision. Defendant appeals.
County Court did not err in denying defendant's motion to sever. The two burglary counts werejoinable because they are defined by the same statutory provision (see CPL 200.20 [2] [c]). Insuch a situation, "the court, in the interest of justice and for good cause shown, may . . . ,in its discretion, order that any such offenses be tried separately" (CPL 200.20 [3]). Defendantcontended that there was substantially more proof on one of the burglaries and the jury would beunable to separately consider the proof (see CPL 200.20 [3] [a]). He also contended that hehad a genuine need to testify regarding one burglary count to explain his presence in the neighborhood,but that he feared prejudice if he was forced to testify regarding the other burglary count (seeCPL 200.20 [3] [b]). The court reasonably determined that a jury could easily [*2]separate the proof on the two burglary counts and that defendant's fear oftestifying was unexplained and unsupported (see People v Lakatosz, 59 AD3d 813, 815 [2009], lv denied 12NY3d 917 [2009]; People v Young, 48AD3d 901, 904 [2008]). Thus, the court did not abuse its discretion in denying the severancemotion.
County Court should have granted defendant's motion to suppress physical evidence. The courtfound that defendant abandoned jewelry and coins by tossing them on a stranger's lawn. The lawcreates a strong presumption against abandonment of property, with the People bearing the burden ofproving a defendant's intentional relinquishment of possession (see People v Lopez, 266 AD2d735, 737 [1999], lv denied 94 NY2d 922 [2000]). Defendant contends that he did notabandon the property, but he instead tossed those items into the bushes as a result of unlawful policeconduct, requiring suppression. We agree with defendant.
According to the police officer's testimony at the suppression hearing, she responded to a callregarding a suspicious man. She saw defendant, who matched the description of the suspicious man,near the location of the complaint. At the time, the officer had no knowledge that defendant hadcommitted any crimes, only that he had been reported as "suspicious." Defendant was running out of aschool driveway, toward the police officer who was in her marked patrol car. She yelled for him tostop, but he turned onto the street and kept running. She then followed him in her car, trailing him byonly the distance of half a house, when she saw him put his hand in his shirt and make a movement likehe was throwing something onto the porch or lawn of a house on the corner. The officer parked her carat that corner and began a foot pursuit, but defendant stopped running after three or four houses,whereupon she handcuffed him and retrieved the stolen property from the yard of the house on thecorner.
Based upon the complaint regarding a described suspicious individual, the officer could lawfullyrequest information from defendant about his presence in the area (see People v Hollman, 79NY2d 181, 190 [1992]; People vTillery, 60 AD3d 1203, 1205 [2009], lv denied 12 NY3d 860 [2009]). The law didnot require defendant to answer the inquiry or stop running (see People v Moore, 6 NY3d 496, 500 [2006]). Flight from police,alone, was insufficient to justify further police intrusion (see People v Holmes, 81 NY2d 1056,1058 [1993]). A pursuit is justified if flight is coupled with additional conduct creating a "reasonablesuspicion that a crime has been, is being, or is about to be committed" (id. at 1057-1058).Here, based upon the information that she had at the time, the officer could only make a request forinformation from defendant. His flight alone did not permit her to pursue him. While the officer couldhave followed defendant to keep him under observation (see People v May, 81 NY2d 725,728 [1992]), her testimony was more consistent with her immediately pursuing defendant in her vehiclethan merely observing him. Only after the unlawful pursuit commenced did defendant discard the stolenproperty. At that point, however, he was not acting spontaneously or making a conscious andindependent decision to abandon the property, but, rather, he discarded the property in response to theillegal pursuit (see People v McCullough,31 AD3d 812, 813-814 [2006], lv denied 7 NY3d 850 [2006]). Hence, that physicalevidence was tainted by the improper police conduct and should have been suppressed (see Peoplev May, 81 NY2d at 728).
In light of our reversal, we need not address defendant's argument that his plea was not knowing orvoluntary due to the ineffective assistance of counsel.
Mercure, J.P., Peters, Malone Jr. and Stein, JJ., concur. Ordered that the judgment is reversed, onthe law, plea vacated, defendant's suppression motion granted, counts three and four of the indictmentcharging tampering with physical evidence and criminal possession of stolen property in the fifth degreedismissed, and matter remitted to the County Court of Broome County for further proceedings notinconsistent with this Court's decision.