| People v Price |
| 2013 NY Slip Op 06196 [109 AD3d 1189] |
| September 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Christopher Price, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller,A.J.), rendered August 5, 2011. The judgment convicted defendant, upon his plea ofguilty, of criminal possession of a weapon in the second degree and escape in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of, inter alia, criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]). Defendant contends that he was forcibly stopped in the absence ofthe requisite reasonable suspicion and thus that Supreme Court erred in refusing tosuppress the gun that defendant dropped during a struggle with police. We reject thatcontention. The record establishes that police officers responded to a report of a blackmale in his twenties standing near a silver Grand Prix holding a gun, with two youngermales approaching him. Defendant was observed standing near a silver Grand Prix withtwo other males at a gas station that was one block from the reported incident. Basedupon the observation of one officer that defendant was acting suspiciously, anotherofficer asked defendant whether he would answer a couple of questions and permit her toensure that he did not have a weapon. Although defendant initially complied with therequest by placing his hands on the wall, he fled the scene before the pat-down searchcommenced. He was tackled on the street shortly thereafter by another police officer whowas exiting a building on the street and observed defendant running toward him andremoving a gun from his waistband.
We reject defendant's contention that the initial encounter constituted a level-threeforcible stop without the requisite reasonable suspicion that he was involved in a crime(see generally People vMoore, 6 NY3d 496, 498-499 [2006]; People v De Bour, 40 NY2d 210,223 [1976]). Inasmuch as defendant matched the physical description of the personreported to have a gun and was observed in proximity of a silver Grand Prix, and "basedupon defendant's physical and temporal proximity to the scene of the reported incident"(People v McKinley, 101AD3d 1747, 1748 [2012]), we conclude that the police initially had a common-lawright of inquiry based upon a founded suspicion that criminal activity was afoot (seeid.; see generally People vGarcia, 20 NY3d 317, 322 [2012]; People v Hollman, 79 NY2d 181,185 [1992]). The court properly determined that the [*2]police thereafter had the requisite reasonable suspicion thatdefendant "may be engaged in criminal activity" based upon those factors, together withdefendant's flight from police (People v Sierra, 83 NY2d 928, 929 [1994]; cf. People v Cady, 103 AD3d1155, 1156 [2013]; Peoplev Riddick, 70 AD3d 1421, 1422-1423 [2010], lv denied 14 NY3d 844[2010]). Probable cause for defendant's arrest was established when a police witnessobserved defendant pull a gun from his waistband while fleeing from the police (seegenerally Moore, 6 NY3d at 498-499). We therefore reject defendant's furthercontention that his statement to the police was the product of an illegal seizure and alsoshould have been suppressed.
Contrary to defendant's contention, the court properly determined that theidentifications of defendant by four police witnesses from a photograph at the grand jurywere confirmatory, and thus properly denied his request for a Wade hearing todetermine whether there was an independent basis for each of the identifications (seePeople v Wharton, 74 NY2d 921, 923 [1989]). The grand jury minutes and therecord of the suppression hearing establish that each of the four witnesses was involvedin the apprehension and arrest of defendant and that two of the witnesses accompanieddefendant for medical treatment. We therefore conclude that the record establishes thateach of the officers had the opportunity to observe defendant at close range and in broaddaylight (cf. People vBoyer, 6 NY3d 427, 432-433 [2006]). A Wade hearing is not warrantedwhere, as here, the "risk of undue suggestiveness is obviated [because] the identifyingofficer[s'] observation[s] of the defendant . . . could not be mistaken"(id. at 432). Present—Scudder, P.J., Fahey, Sconiers and Valentino, JJ.