| People v Johnston |
| 2013 NY Slip Op 00814 [103 AD3d 1202] |
| February 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, v Jesse F.Johnston, Respondent. |
—[*1] Michael A. Jones, Jr., Victor, for defendant-respondent.
Appeal from an order of the Yates County Court (W. Patrick Falvey, J.), dated June4, 2012. The order granted the motion of defendant to suppress certain evidence.
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Yates County Court for further proceedings.
Memorandum: The People appeal from an order granting that part of defendant'somnibus motion to suppress evidence, i.e., a weapon and oral statements made bydefendant to an investigator employed by the Sheriff's Department. County Courtsuppressed the weapon on the ground that, because the initial lawful encounter betweendefendant and the Sheriff's Deputy was improperly elevated to a level two encounterunder People v De Bour (40 NY2d 210, 233 [1976]), the ensuing search ofdefendant was not warranted, and the statements made by defendant were the fruit of anunlawful arrest. We agree with the People that the court erred in suppressing the weaponand statements on those grounds. The testimony at the suppression hearing establishedthat a Sheriff's Deputy was on patrol in a marked vehicle at approximately 2:30 p.m.when he observed defendant and his codefendant walking from a residential drivewayapron toward a vehicle in a nearby public parking lot used in conjunction with aState-owned recreation area. The officer explained that there had been an increasednumber of daytime residential burglaries and that the two men were walking from privateproperty to a vehicle parked in a public parking area. The officer also explained that themen were dressed "pretty heavy" for the mid-70-degree day, that their dress wasuncharacteristic of the hikers and mountain bicyclists who normally visited the area, andthat marihuana was often harvested during that time of year. As the court properlydetermined, the People met their burden of establishing that the officer had an articulablereason for approaching defendant as he and the codefendant were about to enter theirvehicle in the public parking lot and asking the basic, nonthreatening question, "what'sup guys?" (see People v Hollman, 79 NY2d 181, 185 [1992]; People v Rodriguez, 82 AD3d1614, 1615 [2011], lv denied 17 NY3d 800 [2011]). Indeed, such "questionsneed be supported only by an objective credible reason not necessarily indicative ofcriminality" (Hollman, 79 NY2d at 185).
Upon the officer's approach, defendant began to slide down the side of the vehicleaway from the officer and the codefendant placed his hands in the pocket of his hoodedsweatshirt. The officer directed codefendant to remove his hands from his pocket andwhen codefendant [*2]raised his hands, the officerobserved the outline of a handgun. Thus, the officer was thereafter justified in drawinghis service weapon and ordering defendant and the codefendant to the ground inasmuchas he "had a reasonable basis for fearing for his safety and was not required to 'await theglint of steel' " (People v Stokes, 262 AD2d 975, 976 [1999], lv denied93 NY2d 1028 [1999], quoting People v Benjamin, 51 NY2d 267, 271 [1980]).Inasmuch as the officer had reason to believe that defendant was armed, he was justifiedin handcuffing him and frisking him for weapons to ensure his own safety (see People v Fagan, 98 AD3d1270, 1271 [2012]; see also People v Allen, 73 NY2d 378, 380 [1989]).During the course of that frisk, the officer discovered a loaded revolver in defendant'swaistband. Under the circumstances presented here, we conclude that the court erred insuppressing the weapon and thus also erred in suppressing defendant's subsequentstatements to an investigator as the fruit of the allegedly illegal encounter with theDeputy. We note, however, that the court did not otherwise address anyarguments advanced by defendant in support of the suppression of those statements.Because "the only issues that we may consider on this appeal are those that 'may haveadversely affected the appellant' " (People v Schrock, 99 AD3d 1196, 1197 [2012], quotingCPL 470.15 [1]; see People vConcepcion, 17 NY3d 192, 194-195 [2011]), we hold the case, reserve decision,and remit the matter to County Court to rule on any other arguments raised by defendantin support of suppression of the statements. Present—Scudder, P.J., Centra, Carni,Lindley and Sconiers, JJ.