| People v Simmons |
| 2010 NY Slip Op 08869 [79 AD3d 431] |
| December 2, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v DuvalSimmons, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (David C. Bornstein of counsel), forrespondent.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered March 17, 2009,convicting defendant, upon his plea of guilty, of criminal possession of stolen property in the fourthdegree, and sentencing him, as a second felony offender, to a term of 1½ to 3 years, unanimouslyaffirmed.
The court properly denied defendant's suppression motion. In a subway car, officers recognizeddefendant as a person with a history of repeatedly picking the pockets of subway passengers. They alsoknew he was on parole, and that a condition of his parole generally barred him from being in thesubway system. As defendant concedes, the officers had an objective, credible reason to approach himand ask for an explanation as to why he was in the subway. When an officer said, "[P]olice," and"Duval, stop, I need to talk to you," this was not a seizure, and no other police actions at that point wentbeyond a request for information (see People v Reyes, 83 NY2d 945 [1994], certdenied 513 US 991 [1994]; People v Bora, 83 NY2d 531, 535-536 [1994]; People v Grunwald, 29 AD3d 33, 38[2006]). When defendant admitted he knew he was not allowed to be in the subway, and gave ameritless and suspicious excuse for being there, these factors, taken together with their knowledge ofdefendant's criminal history, gave the police a founded suspicion that defendant was in the subway tocommit a crime, and not merely that he was a parole violator whom they should report to the Divisionof Parole. Since the police now had a founded suspicion of criminality, an officer made a proper level IIinquiry when he asked defendant whether he had "anything that he shouldn't have" (see e.g. People v Joseph, 38 AD3d403, 404 [2007], lv denied 9 NY3d 866 [2007]), resulting in the recovery of contraband.Concur—Sweeny, J.P., Catterson, Moskowitz, Renwick and Richter, JJ.