| People v Johnson |
| 2012 NY Slip Op 02213 [93 AD3d 1317] |
| March 23, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, v DesmondJohnson, Respondent. |
—[*1] Andrew C. Lotempio, Buffalo, for defendant-respondent.
Appeal from an order of the Supreme Court, Erie County (Christopher J. Burns, J.), datedJune 16, 2011. The order granted the motion of the People for leave to reargue and, uponreargument, adhered to the prior order granting that part of defendant's motion seeking tosuppress a handgun.
It is hereby ordered that the order so appealed from is unanimously reversed on the law, thatpart of the motion to suppress the handgun is denied, and the matter is remitted to SupremeCourt, Erie County, for further proceedings on the indictment.
Memorandum: Upon the motion of defendant seeking, inter alia, to suppress a handgunseized by police following an allegedly unlawful pursuit of defendant, Supreme Court grantedthat part of the motion to suppress the handgun. Following entry of the order granting that part ofdefendant's motion, the People moved for leave to reargue with respect thereto. Thecourt granted the People's motion insofar as it sought leave to reargue and adhered to its priordetermination. The People appealed from the original order and failed to appeal from thesubsequent order entered on reargument, which superseded the original order (see Loafin'Tree Rest. v Pardi [appeal No. 1], 162 AD2d 985 [1990]). We exercise our discretion to treatthe notice of appeal as one taken from the subsequent order (see CPLR 5520 [c]; see e.g. Kanter v Pieri, 11 AD3d912, 912 [2004]), and now reverse.
The People do not contend that the court erred in determining that the pursuit of defendant bythe police was unlawful (see generally People v Holmes, 81 NY2d 1056, 1057-1058[1993]; People v De Bour, 40 NY2d 210, 223 [1976]). They do contend, however, andwe agree, that the unlawful pursuit of defendant does not require suppression of the handgun.The undisputed testimony established that defendant "abandoned the [hand]gun . . .before any contact with police, and thus it cannot be said that the abandonment was 'coerced orprecipitated by unlawful police activity' " (People v Stevenson, 273 AD2d 826, 827[2000], quoting People v Ramirez-Portoreal, 88 NY2d 99, 110 [1996]; see generallyPeople v Boodle, 47 NY2d 398, 404-405 [1979], cert denied 444 US 969 [1979]).The court therefore erred in rejecting the People's contention that the handgun was abandonedand in suppressing it (see e.g. Stevenson, 273 AD2d at 827; see generally [*2]Ramirez-Portoreal, 88 NY2d at 110; Boodle, 47 NY2dat 402-404). Present—Scudder, P.J., Smith, Carni and Sconiers, JJ.