| People v Holmes |
| 2012 NY Slip Op 04503 [96 AD3d 1421] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Terry L.Holmes, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John R. Schwartz, A.J.), renderedAugust 11, 2008. The judgment convicted defendant, upon a jury verdict, of criminal possessionof a weapon in the second degree and criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of criminalpossession of a weapon in the second degree (Penal Law § 265.03 [3]) and criminalpossession of a weapon in the third degree (§ 265.02 [1]), defendant contends that CountyCourt erred in refusing to suppress the gun that he discarded while fleeing from the police. Wereject that contention. It is well settled that "a defendant's flight in response to an approach by thepolice, combined with other specific circumstances indicating that the suspect may be engaged incriminal activity, may give rise to reasonable suspicion, the necessary predicate for policepursuit" (People v Sierra, 83 NY2d 928, 929 [1994]; see People v Gray, 77 AD3d 1308, 1308 [2010]). Here, the policereceived a 911 call reporting that three black males were engaged in suspicious activity, i.e., theyhad emerged from behind the house of the caller's sister and entered a blue vehicle. Theresponding officer, who arrived at the scene within a few minutes of the call, observed defendantdriving away in the vehicle described in the 911 call with two other black males. When theofficer turned to follow defendant's vehicle in his marked police car, the vehicle abruptlyswerved out of the driving lane and toward the curb. The passenger front door opened, thevehicle struck the curb and the two passengers jumped out of the vehicle as it rolled along thecurb. At that point, the officer pulled behind the vehicle and activated his lights, whereupondefendant jumped out of the vehicle as it rolled and the officer pursued defendant on foot.Contrary to defendant's contention, we conclude that the information provided by the 911 caller,together with defendant's conduct in driving the vehicle into a curb, abandoning the movingvehicle and fleeing on foot in response to observing the marked police car, provided the officerwith the requisite reasonable suspicion to pursue defendant (see People v Martinez, 59 AD3d 1071, 1072 [2009], lvdenied 12 NY3d 856 [2009]; Peoplev Johnson, 19 AD3d 1163, 1164 [2005], lv denied 5 NY3d 829 [2005]).
Contrary to defendant's further contention, the sentence is not unduly harsh or severe, [*2]particularly in light of his criminal history and the nature of theoffense. Present—Centra, J.P., Fahey, Peradotto, Carni and Sconiers, JJ.