| People v Price |
| 2013 NY Slip Op 08732 [112 AD3d 1345] |
| December 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v BobbyPrice, Jr., Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.),rendered December 12, 2011. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a weapon in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of criminal possession of a weapon in the fourth degree (Penal Law §265.01 [1]). Defendant contends that County Court erred in refusing to suppress tangibleevidence that the police seized from his person after stopping his vehicle. Defendantfailed to preserve for our review his contention that the evidence must be suppressedbased on the use of excessive force by the police because he failed to raise that specificcontention in his motion papers or at the hearing (see People v Gomez, 193AD2d 882, 883 [1993], lv denied 82 NY2d 708 [1993]; see generally Peoplev Jacquin, 71 NY2d 825, 826-827 [1988]; People v Caballero, 23 AD3d 1031, 1032 [2005], lvdenied 6 NY3d 846 [2006]).
In any event, that contention lacks merit. "Claims that law enforcement officials usedexcessive force in the course of making an arrest, investigatory stop, or other seizure of aperson are properly analyzed under the Fourth Amendment's objective reasonablenessstandard . . . Determining whether the force used to effect a particularseizure is reasonable under the Fourth Amendment requires a careful balancing of thenature and quality of the intrusion on the individual's Fourth Amendment interestsagainst the countervailing governmental interests at stake . . . The test ofreasonableness under the Fourth Amendment requires careful attention to the facts andcircumstances of each particular case, including the severity of the crime at issue,whether the suspect poses an immediate threat to the safety of the officers or others, andwhether he [or she] is actively resisting arrest or attempting to evade arrest by flight" (People v Smith, 95 AD3d21, 26 [2012] [internal quotation marks omitted]; see Graham v Connor, 490US 386, 388 [1989]).
Here, the officers stopped the vehicle being driven by defendant, removed defendantfrom the vehicle at gunpoint, and immediately asked him where the gun was located.Defendant was being sought in connection with the crime of burglary in the first degree,a class B violent felony, and was believed to be in possession of a handgun, based uponinformation provided by an [*2]identified citizen.Furthermore, although he did not actively resist the police upon being stopped, he hadleft the crime scene and thus was attempting to evade arrest by flight. Consequently,applying the Graham test, we conclude that the officers' use of force wasreasonable under the Fourth Amendment. Finally, insofar as defendant contends that theofficers stopped him without probable cause, we agree with the court that the informationavailable to the police justified a level three intrusion under People v De Bour(40 NY2d 210, 223 [1976]; see People v Hollman, 79 NY2d 181, 184-185[1992]; cf. People v Moore,6 NY3d 496, 498-499 [2006]), and that the actions of the police required only thatlevel of knowledge.
We have considered defendant's remaining contention and conclude that it is withoutmerit. Present—Scudder, P.J., Smith, Peradotto, Lindley and Sconiers, JJ.