| People v Bradley |
| 2016 NY Slip Op 01959 [137 AD3d 1611] |
| March 18, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vBrandyn T. Bradley, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Meghan E. Leydecker of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns,J.), rendered March 25, 2014. The judgment convicted defendant, upon his plea of guilty,of criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofcriminal possession of a weapon in the second degree (Penal Law § 265.03[3]), defendant's sole contention is that Supreme Court erred in refusing to suppressphysical evidence seized from him and his statements to the police on the ground that theinitial approach by a police officer was unlawful. We reject that contention. It is wellestablished that, in evaluating police conduct, we "must determine whether the actiontaken was justified in its inception and at every subsequent stage of the encounter"(People v Nicodemus, 247 AD2d 833, 835 [1998], lv denied 92 NY2d858 [1998], citing People v De Bour, 40 NY2d 210, 215 [1976]). "The minimalintrusion of approaching to request information is permissible when there is someobjective credible reason for that interference not necessarily indicative of criminality"(De Bour, 40 NY2d at 223; see People v McIntosh, 96 NY2d 521, 525[2001]; People v Hollman, 79 NY2d 181, 184 [1992]). Here, the testimony at thesuppression hearing established that the officer and his partner were on routine patrol inBuffalo when the officer observed known members of two different gangs congregatingoutside a residence on Davidson Avenue. According to the officer, one of the gangmembers was in a neighborhood occupied by the other gang, the neighborhoods in whicheach gang operated were not particularly close, and the officer had never seen membersof those gangs interacting before. The officer testified that this unusual situation raisedhis suspicion because he was unsure whether the gang members were "starting anything,or what was going on" outside the residence. When the officer exited his patrol vehicleand approached the residence to request information, he observeddefendant—who was unknown to the officer at that time and had been sitting onthe porch—turn away, ring the doorbell, and begin to pull a handgun out of hispocket. The officer eventually seized the handgun, and defendant was arrested. Contraryto defendant's contention, we conclude that the officer's testimony establishes that he"[did] not act on whim or caprice and [had] an articulable reason not necessarily relatedto criminality for making the approach" (Hollman, 79 NY2d at 190; seegenerally De Bour, 40 NY2d at 213). Present—Carni, J.P., Lindley, DeJoseph,Nemoyer and Troutman, JJ.