| People v Rainey |
| 2014 NY Slip Op 07846 [122 AD3d 1314] |
| November 14, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vTerrance C. Rainey, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of counsel), fordefendant-appellant.
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 appeal was held by this Court by order entered October 4,2013, decision was reserved and the matter was remitted to Monroe County Court forfurther proceedings (110 AD3d 1464). The proceedings were held and completed(Douglas A. Randall, J.).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: We previously held this case, reserved decision, and remitted thematter to County Court to determine, in the context of defendant's contention that thecourt erred in denying his suppression motion, "whether the police engaged in a pursuitand if so, whether that pursuit was legal" (People v Rainey, 110 AD3d 1464,1466 [2013]). Upon remittal, the court found that the police officers were not in pursuitof defendant when he discarded the drugs, and we now affirm. The court properlyconcluded that the police officers were engaged in mere observation, which does notrequire reasonable suspicion (see People v Howard, 50 NY2d 583, 592 [1980],cert denied 449 US 1023 [1980]). The testimony at the suppression hearingestablished that defendant's freedom of movement was not restricted because the policeofficer who followed defendant did not draw his gun, did not prevent defendant frommoving, and did not give any verbal commands to defendant until after defendantdropped the plastic bag containing drugs (see People v Bora, 83 NY2d 531,535-536 [1994]; Howard, 50 NY2d at 592).
Defendant's sentence is not unduly harsh or severe. Present—Smith, J.P.,Peradotto, Carni and Lindley, JJ.