| People v Buie |
| 2011 NY Slip Op 07857 [89 AD3d 748] |
| November 1, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Appellant, v KevinBuie, Respondent. |
—[*1] Sharon Weintraub Dashow, Brooklyn, N.Y., for respondent.
Appeal by the People from an order of the Supreme Court, Kings County (Goldberg, J.),dated November 17, 2010, which, after a hearing, granted that branch of the defendant's omnibusmotion which was to suppress physical evidence.
Ordered that the order is reversed, on the law, and that branch of the defendant's omnibusmotion which was to suppress physical evidence is denied.
At 2:00 a.m. on June 10, 2009, two police officers in plainclothes in an unmarked policevehicle were on an anticrime patrol assignment in a Brooklyn housing complex when they heardgunshots. From their vehicle, the officers canvassed the area and, within seconds, came upon agroup of men drinking alcohol on the basketball courts. One officer testified that he believed thegunshots came from that area. No one else was in the area. As one officer exited the vehicle, heimmediately identified himself as a police officer, and approached the men. The men, except thedefendant, started to slowly walk off to the left. The defendant, however, immediately ran to theright, toward one building of the housing complex, with his left hand swinging freely and hisright hand pinned to his waist, prompting the officer to pursue the defendant. When thedefendant neared the building, both of his hands were swinging, and the officer observed thebarrel of a black firearm in one of the defendant's hands. The defendant ran into the building andup the stairwell to the sixth floor, with the officer in pursuit. As the officer exited the sixth floorstairwell, he observed the defendant, who no longer had a firearm in his hand, shutting the trashcompactor. The officer "heard some clicking as it was going down, as if something metal hadbeen thrown down there." The police subsequently recovered a .38 caliber handgun from thebasement of building, inside the trash compactor.
"Police pursuit of an individual significantly impede[s] the person's freedom of movement"and, thus, "must be justified by reasonable suspicion that a crime has been, is being, or is about tobe committed" (People v Holmes, 81 NY2d 1056, 1057-1058 [1993] [internal quotationmarks omitted]; see People v Martinez, 80 NY2d 444, 447 [1992]). "[A] defendant'sflight in response to an approach by the police, combined with other specific circumstancesindicating that the suspect may be engaged in criminal activity, may give rise to reasonablesuspicion" (People v Sierra, 83 NY2d [*2]928, 929[1994]).
Here, the defendant's actions of breaking away from the group and running from policeofficers with one hand pinned to his waist, only moments after the police heard gunshots in thearea, were sufficient to give rise to a reasonable suspicion that he was engaged in criminalactivity (id. at 930; see People v Pines, 99 NY2d 525 [2002]). Consequently,because the police had reasonable suspicion to pursue the defendant, the gun that the defendantdiscarded during the pursuit was not a product of improper or illegal police conduct (seePeople v Sierra, 83 NY2d at 929; People v Wynn, 25 AD3d 576 [2006]). Accordingly, the SupremeCourt should have denied that branch of the defendant's omnibus motion which was to suppressthe handgun recovered by the police. Rivera, J.P., Eng, Belen and Austin, JJ., concur.