| People v Rainey |
| 2013 NY Slip Op 06469 [110 AD3d 1464] |
| October 4, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vTerrance C. Rainey, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.),rendered March 18, 2009. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a controlled substance in the third degree, criminal possession of acontrolled substance in the fifth degree and unlawful possession of marihuana.
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Monroe County Court for further proceedings in accordance with thefollowing memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of criminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]), criminal possession of a controlled substance in the fifth degree(§ 220.06 [5]), and unlawful possession of marihuana (§ 221.05).
Defendant contends that County Court erred in refusing to suppress evidence of hispossession of drugs and his statement to the police inasmuch as the evidence and thestatement were obtained as the result of an illegal pursuit by the police. At thesuppression hearing, the People presented evidence that three police officers were onpatrol near a multi-unit apartment building in Rochester at approximately 1:00 a.m. whenthey were approached by an unidentified male who told them that narcotics sales wereoccurring on the fourth floor. The officers entered the building and began climbing thestairs. When the officers reached the third floor, they saw a male, later identified asdefendant, running down the fire escape. Defendant reentered the building on the secondfloor before exiting the building through the front door. The officers followed defendantas he jogged away from the building. After defendant jumped over a wall into a parkinglot next to the building, he dropped a baggie containing drugs on the ground.
" '[I]t is well settled that "the police may pursue a fleeing defendant if they have areasonable suspicion that defendant has committed or is about to commit a crime" ' " (People v Cady, 103 AD3d1155, 1156 [2013]; see People v Martinez, 80 NY2d 444, 446 [1992]; People v Riddick, 70 AD3d1421, 1422 [2010], lv denied 14 NY3d 844 [2010]). While flight alone isinsufficient to justify pursuit, "defendant's flight in response to an approach by the police,combined with other specific circumstances indicating that the suspect may beengaged in criminal activity, may give rise to [*2]reasonable suspicion, the necessary predicate for policepursuit" (People v Sierra, 83 NY2d 928, 929 [1994] [emphasis added]; seeCady, 103 AD3d at 1156). "Although ' "a defendant who challenges the legality of asearch and seizure has the burden of proving illegality, the People are nevertheless put tothe burden of going forward to show the legality of the police conduct in the firstinstance" ' " (People vNoah, 107 AD3d 1411, 1413 [2013]; see People v Lazcano, 66 AD3d 1474, 1475 [2009], lvdenied 13 NY3d 940 [2010]). Furthermore, a defendant's attempt to discard evidencegenerally constitutes "an independent act involving a calculated risk" and, based on thatact of abandonment, a defendant "los[es] his [or her] right to object to the [police seizingthe evidence]" (People v Holland, 221 AD2d 947, 948 [1995], lv denied87 NY2d 922 [1996] [internal quotation marks omitted]). If, however, a defendantabandons evidence "in response to [an] illegal pursuit," it must be suppressed(Sierra, 83 NY2d at 930). Here, the court refused to suppress the evidence andthe statement on the ground that the police had probable cause to arrest defendant, butthe court did not rule on the threshold issues whether the police engaged in a pursuit and,if so, whether that pursuit was legal, i.e., supported by a reasonable suspicion thatdefendant had committed or was about to commit a crime (see id. at 929). If thepursuit was legal, then defendant abandoned the drugs as an "independent act involving acalculated risk" (Holland, 221 AD2d at 948), but if defendant abandoned thedrugs "in response to [an] illegal pursuit" (Sierra, 83 NY2d at 930), then thedrugs must be suppressed. Inasmuch as "[w]e have no power to ' "review issues eitherdecided in an appellant's favor, or not ruled upon, by the trial court" ' " (People v Coles, 105 AD3d1360, 1363 [2013], quoting People v Concepcion, 17 NY3d 192, 195 [2011]), wecannot rule on those issues in the first instance. We therefore hold the case, reservedecision and remit the matter to County Court to rule on those issues based on theevidence presented at the suppression hearing. Present—Smith, J.P., Peradotto,Carni and Lindley, JJ.