| People v Owens |
| 2015 NY Slip Op 02790 [127 AD3d 788] |
| April 1, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Nathaniel J. Owens, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Matthew Nicholson, Martin Sawyer, ErinSmith, and Louis O'Neill of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, Ellen C. Abbot, and Jason P. Yampolsky of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Kron, J.), rendered December 4, 2012, convicting him of criminal possession of aweapon in the second degree, upon his plea of guilty, and imposing sentence. The appealbrings up for review the denial, after a hearing, of those branches of the defendant'somnibus motion which were to suppress physical evidence and his statement to lawenforcement officials.
Ordered that the judgment is affirmed.
We agree with the hearing court that the subject firearm was properly seized. Thearresting officer testified that he saw, from a distance of "[l]ess than a foot" away, "whatlooked to be" "two to three inches" of "the butt of a firearm" that was "pulling down" thedefendant's rear pants pocket. These observations gave the officer an objective, crediblereason to approach the defendant (see People v Spencer, 84 NY2d 749, 753[1995]; People v Hollman, 79 NY2d 181 [1992]). Upon seeing the officer, thedefendant immediately turned sideways to obscure his rear pants pockets from theofficer's view, giving the officer a "founded suspicion that criminal activity [was] afoot,"justifying greater intrusion to conduct an inquiry (People v De Bour, 40 NY2d210, 223 [1976]). At that point, when the defendant lowered his hands in the direction ofhis waist area, the officer had reason to suspect that he was in danger of physical injuryand was authorized to conduct a protective frisk (see CPL 140.50 [3]; Peoplev Hollman, 79 NY2d at 185; People v De Bour, 40 NY2d at 223). Probablecause for the defendant's arrest arose after the officer grabbed the defendant's hands forhis own safety and, upon "wrestling" with the defendant, saw that the item in thedefendant's back pocket was, in fact, a firearm (see People v Hollman, 79 NY2dat 185; People v De Bour, 40 NY2d at 223). Thus, the record establishes that theofficer's conduct was justified at its inception and reasonably related in scope andintensity to the circumstances of the encounter as it developed (see People v Moyaho, 12AD3d 692, 693 [2004]; People v Douglas, 309 AD2d 517 [2003]).Moreover, given the legality of the officer's actions, the defendant's claim that hispost-arrest statement to police should be suppressed as the product of an illegal search orseizure is without merit (cf. Wong Sun v United States, 371 US 471, 488 [1963]).Skelos, J.P., Roman, Hinds-Radix and LaSalle, JJ., concur.