| People v Johnson |
| 2013 NY Slip Op 07549 [111 AD3d 469] |
| November 14, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Rashard Johnson, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), forrespondent.
Judgment, Supreme Court, New York County (Herbert J. Adlerberg, J.H.O,. atsuppression hearing; Richard D. Carruthers, J., at suppression ruling, plea andsentencing), rendered November 23, 2011, convicting defendant of criminal possessionof a weapon in the second degree, and sentencing him, as a second violent felonyoffender, to a term of seven years, unanimously affirmed.
The court properly denied defendant's suppression motion. There is no basis fordisturbing the court's credibility determinations. The totality of the information availableto the police provided reasonable suspicion of criminality and thus warranted a stop andfrisk, even though each piece of information, viewed in isolation, may have had aninnocent explanation (see e.g.People v Rodriguez, 71 AD3d 436 [2010], lv denied 15 NY3d 756[2010]).
The events at issue took place at night in a particular location known to the police tobe drug prone and dangerous. Defendant and another man fit the general description oftwo men who had recently committed a robbery at that location. Defendant and the otherman made hand motions that appeared to be a furtive transfer of a concealed object,rather than a normal handshake. The police had just observed the other man engaging ina pattern of suspicious behavior, including giving false information when the officersquestioned him. While asking defendant for his name and for identification, an officerput his hand on defendant's chest "just to create distance" while he momentarily took hiseyes off defendant to look for his partner, whereupon defendant became "nervous" andbegan "stepping from left to right, moving around his body." Defendant's abrupt changein behavior, when added to the preceding factors, heightened the officer's level ofsuspicion, justifying a frisk (seePeople v Allen, 42 AD3d 331, 332 [1st Dept 2007], affd 9 NY3d 1013[2008]).
In any event, regardless of whether the frisk was lawful, it did not yield anycontraband. Instead, after the frisk had been completed, the officer asked defendant whatwas in the bag he was carrying. This was a common-law inquiry that was, at least,supported by a founded suspicion of criminality (see People v Hollman, 79NY2d 181, 191 [1992]). At that point, defendant dropped the bag (which contained afirearm) and ran. This was an independent act of abandonment, constituting a strategic,calculated decision and not a spontaneous reaction to [*2]police activity (see People v Boodle, 47 NY2d 398,402 [1979], cert denied 444 US 969 [1979]). The abandonment was not inresponse to the allegedly illegal frisk, but to the clearly lawful inquiry about the contentsof the bag.
Defendant's claim that his conviction violated his Second Amendment right to beararms is without merit. At a minimum, his Second Amendment claim fails because hisstatus as a previously convicted felon rendered him ineligible to be licensed to carry orpossess a firearm (see Penal Law § 400.00 [1] [c]), and the Supreme Courtof the United States has said that nothing in its opinion in District of Columbia vHeller (554 US 570 [2008]) "should be taken to cast doubt on longstandingprohibitions on the possession of firearms by felons" (id. at 626).Concur—Gonzalez, P.J., Friedman, Sweeny, Moskowitz and Clark, JJ.