| People v McKinley |
| 2012 NY Slip Op 09229 [101 AD3d 1747] |
| December 28, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v TravontaeMcKinley, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Susan C. Azzarelli of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), rendered June 18,2009. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon inthe second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty of criminalpossession of a weapon in the second degree (Penal Law § 265.03 [3]). Contrary to defendant'scontention, County Court properly refused to suppress a handgun discarded by defendant while he wasbeing pursued by a police officer, a controlled substance seized from his person following his arrest,and a postarrest showup identification. The officer who pursued defendant testified at the suppressionhearing that the police received a 911 call reporting that shots had been fired near the intersection ofEast Fayette Street and Columbus Avenue in Syracuse. The information transmitted to the policeindicated that four black males, at least one of whom was dressed in dark clothing, were reportedlyinvolved in the incident. Within a minute and a half of the dispatch, the pursuing officer and two otherpolice officers in an unmarked vehicle approached a group of four black males, one of whom wasdefendant, walking approximately one block from the scene of the alleged shooting. The police vehiclepulled up to the four individuals and, as the officers were exiting the vehicle, defendant and another maledressed in dark clothing fled in different directions. The officer who pursued defendant testified that herepeatedly yelled, "stop, police" while he was pursuing defendant. During the course of the pursuit,defendant discarded a handgun. The police thereafter apprehended defendant and, during a searchincident to his arrest, discovered a bag containing cocaine. The witness who placed the 911 call thenidentified defendant as the shooter in a postarrest showup identification.
We conclude that, based upon defendant's physical and temporal proximity to the scene of thereported incident and the fact that the group of males matched the description of the individualsinvolved in the shooting, the officers had a founded suspicion that criminal activity was afoot, justifyingtheir initial common-law inquiry of defendant (see People v De Bour, 40 NY2d 210, 223[1976]; People v Brown, 67 AD3d1439, 1439-1440 [2009], lv denied 14 NY3d 798 [2010]; People v Williams, 39 AD3d 1269,1270 [2007], lv denied 9 NY3d 871 [2007]). We further conclude that defendant's [*2]flight as the officers began to exit their vehicle and his continued flight indefiance of orders to stop furnished the requisite reasonable suspicion to justify a greater level of policeintrusion (see Williams, 39 AD3d at 1270), i.e., police pursuit (see People v Pines, 99NY2d 525, 526-527 [2002]; People v Sierra, 83 NY2d 928, 929 [1994]).
Defendant contends that the police lacked reasonable suspicion justifying pursuit because therecord does not establish that defendant knew that the approaching individuals were police officers,citing People v Riddick (70 AD3d1421, 1424 [2010], lv denied 14 NY3d 844 [2010]). Even assuming, arguendo, thatdefendant's contention is preserved for our review, we conclude that it is without merit. Here, unlike inRiddick, the police were responding to a reported crime, and the police therefore had afounded suspicion that criminal activity was afoot before approaching defendant (see id. at1422). Thus, under the circumstances of this case, including the report of shots fired and the fact thatthe four individuals matched the description of the individuals involved in the shooting incident, weconclude that defendant's flight from the officers and his refusal to stop after the officers explicitlyidentified themselves as police and he was directed to stop justified the pursuit of defendant (see generally People v Bachiller, 93 AD3d1196, 1197 [2012], lv dismissed 19 NY3d 861 [2012]; Brown, 67 AD3d at1439-1440; People v Martinez, 59AD3d 1071, 1072 [2009], lv denied 12 NY3d 856 [2009]).
Because the record supports the determination of the suppression court that the police hadreasonable suspicion to pursue defendant, defendant's abandonment of a handgun during the pursuitwas not precipitated by illegal conduct and, thus, denial of suppression was proper (see Sierra,83 NY2d at 930). The search of defendant's person, resulting in the seizure of the controlled substancesought to be suppressed, was incident to defendant's lawful arrest (see Williams, 39 AD3d at1270), as was the postarrest identification of defendant. Present—Smith, J.P., Peradotto,Lindley, Valentino and Whalen, JJ.