| People v McClendon |
| 2012 NY Slip Op 01620 [92 AD3d 959] |
| February 28, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JamesMcClendon, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Yael V. Levy and Laurie K. Gibbons ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Carter, J.),rendered May 6, 2011, convicting him of criminal possession of a weapon in the second degree,criminal possession of a weapon in third degree, criminal possession of a weapon in the fourthdegree, and obstructing governmental administration in the second degree, upon his plea ofguilty, and imposing sentence. The appeal brings up for review the denial, after a hearing (Grella,J.), of those branches of the defendant's omnibus motion which were to suppress physicalevidence and his statements to law enforcement officials.
Ordered that the judgment is affirmed.
According to the evidence adduced at a suppression hearing, the police received ananonymous report that a black male was armed with a gun in front of a specified address. Withina very short time, a police officer arrived at the scene and spoke briefly with the defendant. Afterwalking around the area and ascertaining that the defendant was the only person there who metthe vague description provided by the anonymous report, the officer approached the defendantagain. Upon speaking with him a second time, the officer saw what appeared to be the outline ofa gun in the defendant's right front pants pocket. The defendant was searched, and the policerecovered a gun and ammunition. Later, the defendant made inculpatory statements to severalpolice officers. The defendant moved, inter alia, to suppress the gun and ammunition, as well ashis statements.
At the suppression hearing, a security video was admitted into evidence, which depictedportions of the defendant's encounter with the police. Although the security video contradictedcertain aspects of the officer's testimony, the hearing court found the officer's testimony to becredible on the critical aspect of whether the officer saw the outline of a gun in the defendant'sright front pants pocket. Based on that testimony, the hearing court held that the police had actedproperly. The court therefore denied the defendant's omnibus motion. The defendant eventuallypleaded guilty to various crimes arising from the incident and, on this appeal, challenges only thedenial of those branches of his omnibus motion which were to suppress the gun and ammunition,and his statements to law enforcement officials. We affirm.
As the parties agree, when the officer first encountered the defendant, she had only a foundedsuspicion that criminal activity was afoot, and thus had the right to conduct a common-law [*2]right of inquiry only (see People v Moore, 6 NY3d 496, 500 [2006]; Matter of Dominique W., 84 AD3d657, 657-658 [2011]). If the officer's testimony that she saw the outline of a gun in thedefendant's right front pants pocket is credited, that testimony established that the police hadreasonable suspicion to believe that the defendant had a gun and justified a search (see People v Bowens, 9 AD3d 372[2004]).
The credibility findings of hearing courts are entitled to deference on appeal, but this Courtmay make its own findings of fact if it determines that the hearing court incorrectly assessed theevidence (see People v Anderson,91 AD3d 789 [2012]; People vMeyers, 80 AD3d 715, 716 [2011]; People v Rodriguez, 77 AD3d 280, 284-285 [2010]; People v O'Hare, 73 AD3d 812,813 [2010]; Matter of Robert D., 69AD3d 714, 716-717 [2010]). Here, we cannot say that the hearing court was incorrect increditing the officer's testimony. While the security video established that certain noncrucialaspects of that testimony may have been inaccurate, it supported the officer's testimony on thecrucial point that the defendant was not subjected to a forcible stop until the officer saw whatappeared to be the outline of a gun in the defendant's pocket. Accordingly, we decline to disturbthe hearing court's factual finding that the police did not unlawfully search the defendant, andthat branch of the defendant's omnibus motion which was to suppress the physical evidence wasproperly denied. Finally, inasmuch as the defendant sought suppression of his statements solelyon the ground that they were the "fruit of the poisonous tree" (Wong Sun v United States,371 US 471, 488 [1963] [internal quotation marks omitted]), that branch of the defendant'somnibus motion which was to suppress his statements to law enforcement officials also wasproperly denied (see People v Day,8 AD3d 495, 496 [2004]; cf. Peoplev Febus, 11 AD3d 554, 556 [2004]; People v Fleury, 8 AD3d 585, 587 [2004]). Balkin, J.P., Dickerson,Belen and Cohen, JJ., concur.