| People v White |
| 2014 NY Slip Op 03027 [117 AD3d 425] |
| May 1, 2014 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Michael White, Appellant. |
Steven Banks, The Legal Aid Society, New York (Svetlana M. Kornfeind ofcounsel), and Dechert LLP, New York (Deborah S. Sohn of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), forrespondent.
Judgment, Supreme Court, New York County (Marcy L. Kahn, J.), rendered May 25,2012, convicting defendant, upon his plea of guilty, of criminal possession of a weaponin the second degree, and sentencing him, as a second felony offender, to a term of sixyears, unanimously affirmed.
The court properly denied defendant's suppression motion. Late at night, in aparticularly robbery-prone area, the police saw defendant and his two companionsengaging in a pattern of movements that was sufficiently unusual to attract the officers'attention (see People v Ocasio, 85 NY2d 982, 985 [1995]), even if "notnecessarily indicative of criminality" (People v McIntosh, 96 NY2d 521, 525[2001]). Accordingly, the record supports the hearing court's finding that the police hadan objective credible reason to approach the men to request information.
In any event, at this point, regardless of their subjective intentions, the police didnothing more than stop their car and get out. Defendant and a companion turned and fledimmediately upon seeing the plainclothes officers, who reasonably believed they hadbeen recognized as the police (see People v Collado, 72 AD3d 614 [1st Dept 2010], lvdenied 15 NY3d 850 [2010], and cases cited therein). As defendant ran, othermembers of the police team, who were in another car, saw defendant "clutching" at hiswaistband in a manner that indicated the presence of a weapon. The officers gavedetailed testimony establishing that, based on their experience, defendant clearlyappeared to have a firearm in his waistband, even though the officers could not see aweapon. Based on all these factors, the police had reasonable suspicion of criminalityjustifying their pursuit of defendant (see People v Stephens, 47 AD3d 586, 588-589 [1st Dept2008], lv denied 10 NY3d 940 [2008]). The record fails to support defendant'sassertion that the police were already chasing defendant before making the observationsregarding his waistband.
Therefore, the weapon defendant discarded in the course of his flight was lawfullyobtained. The record also supports the court's alternative finding that defendant'sindependent [*2]act of discarding the weapon during thechase was a strategic, calculated decision and not a spontaneous reaction to policeactivity (see People v Boodle, 47 NY2d 398, 402 [1979], cert denied 444US 969 [1979]). Concur—Mazzarelli, J.P., Renwick, Feinman, Gische andKapnick, JJ.