| People v Bush |
| 2015 NY Slip Op 05128 [129 AD3d 537] |
| June 16, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Steven Bush, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Sharmeen Mazumder ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Allen J. Vickey of counsel), forrespondent.
Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered July25, 2013, convicting defendant, upon his plea of guilty, of criminal possession of aweapon in the second degree, and sentencing him to a term of five years, unanimouslymodified, on the law, to the extent of vacating the sentence and remanding forresentencing.
The court properly denied defendant's suppression motion. On a block that wasparticularly prone to shootings, an officer saw defendant using both hands to adjust anobject about the size of a brick against his chest, under his sweatshirt. Based on hisexperience, the officer believed that defendant may have been carrying a weapon. Whendefendant "locked eyes" with the officer, he appeared "very frightened, like his eyeswidened," and he immediately stopped adjusting the object on his chest and dropped hisarms to his sides. This behavior evinced a consciousness of guilt that went beyond merenervousness, and, when added to the prior observations, it gave the officer a foundedsuspicion of criminality, thereby justifying a common-law inquiry (see Matter ofSteven McC., 304 AD2d 68, 72-73 [1st Dept 2003], lv denied 100 NY2d 511[2003]; People v Pines, 281 AD2d 311 [1st Dept 2001], affd 99 NY2d525 [2002]). Defendant's immediate flight, before the police could even approach him tomake an inquiry, established reasonable suspicion and justified the police pursuit, duringwhich defendant discarded a pistol (see People v Hernandez, 3 AD3d 325 [1st Dept 2004],lv denied 2 NY3d 741 [2004]). The record also supports the court's alternativefinding that, regardless of the legality of the police pursuit, the seizure was lawful underthe doctrine of abandonment (see People v Boodle, 47 NY2d 398, 402[1979], cert denied 444 US 969 [1979]).
Although defendant was convicted of an armed felony, he was potentially eligible foryouthful offender treatment pursuant to the mitigation provisions of CPL 720.10 (3).Accordingly, under People vRudolph (21 NY3d 497, 501 [2013]), the court was required to make a youthfuloffender determination (seePeople v Flores, 116 AD3d 644 [1st Dept 2014]). Concur—Acosta, J.P.,Renwick, Moskowitz, Manzanet-Daniels and Feinman, JJ.