| People v Glover |
| 2011 NY Slip Op 06783 [87 AD3d 1384] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Devin J.Glover, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John R. Schwartz, A.J.), renderedDecember 17, 2007. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). Contraryto defendant's contention, County Court properly refused to suppress both the handgun seized bythe police from defendant's person and defendant's subsequent statements to the police. Therecord establishes that the officers were entitled to approach defendant to conduct a common-lawinquiry because they had "a founded suspicion that criminal activity [was] afoot" (People vDe Bour, 40 NY2d 210, 223 [1976]). According to the testimony of two police officers at thesuppression hearing, they were traveling in a marked police vehicle when they observeddefendant turn and whistle toward a group of males standing in an area known for drug sales, atwhich time the group immediately dispersed from the area (see generally People v Williams, 39 AD3d 1269, 1270 [2007],lv denied 9 NY3d 871 [2007]; People v Rivera, 175 AD2d 78, 79-80 [1991],lv denied 78 NY2d 1129 [1991]). The officers also testified that, upon exiting theirvehicle and approaching defendant, he "refus[ed] to remove his hand from his pocket despite therepeated demands of . . . the officers that he do so" (People v Mack, 49 AD3d 1291,1292 [2008], lv denied 10 NY3d 866 [2008]). Defendant's conduct, along with the factthat a shooting had recently occurred in the area of the encounter, "provided the officers withreasonable suspicion to believe that defendant posed a threat to their safety" (id.; seePeople v Robinson, 278 AD2d 808 [2000], lv denied 96 NY2d 787 [2001]; see generally People v Hensen, 21AD3d 172, 176 [2005], lv denied 5 NY3d 828 [2005]). Thus, the frisk conducted byone of the officers at that time, as a result of which the officer discovered a loaded handgun indefendant's coat pocket, "was a 'constitutionally justified intrusion designed to protect the safetyof the officers' . . . , and [we conclude] that the court properly refused to suppressthe evidence seized as a result thereof, as well as defendant's ensuing statements" (Mack,49 AD3d at 1292). Present—Centra, J.P., Fahey, Sconiers, Green and Martoche, JJ.