| People v Johnson |
| 2016 NY Slip Op 03332 [138 AD3d 1454] |
| April 29, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJimmie L. Johnson, Jr., Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joanne M.Winslow, J.), rendered January 22, 2013. The judgment convicted defendant, upon hisplea of guilty, of criminal possession of a weapon in the second degree (two counts) andmenacing a police officer or peace officer (two counts).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of, inter alia, two counts of criminal possession of a weapon in the second degree(Penal Law § 265.03 [1] [b]; [3]). Contrary to defendant's contention,Supreme Court properly refused to suppress evidence, including a handgun, seized by apolice officer from defendant's person. A Rochester police officer testified that hestopped defendant's bicycle for a violation of the Vehicle and Traffic Law, and thecourt's determination to credit that testimony over defendant's evidence to the contrary "isentitled to great deference" (People v Frazier, 52 AD3d 1317, 1317 [2008], lvdenied 11 NY3d 788 [2008]; see People v Prochilo, 41 NY2d 759, 761[1977]). "Great weight must be accorded to the determination of the suppression courtbecause of its ability to observe and assess the credibility of the witnesses, and itsfindings should not be disturbed unless clearly erroneous or unsupported by the hearingevidence" (People v Coleman, 306 AD2d 941, 941 [2003], lv denied 1NY3d 596 [2004]; see People v Mateo, 2 NY3d 383, 414 [2004], cert denied542 US 946 [2004]). Here, the People presented evidence establishing that, asdefendant fled the scene, the officer observed him remove an object from his waistbandand move his hands in a way that led the officer to conclude that defendant wasattempting to chamber a round of ammunition into a semiautomatic handgun, providingthe officer with reasonable suspicion to detain defendant (see People v Curry, 81 AD3d1315, 1315 [2011], lv denied 16 NY3d 858 [2011]; People v Wilson, 5 AD3d408, 409 [2004], lv denied 2 NY3d 809 [2004]). Upon observing theweapon in defendant's hand, the officer had probable cause to arrest defendant (see People v Madrid, 52 AD3d530, 531 [2008], lv denied 11 NY3d 790 [2008]; People v Forbes,244 AD2d 954, 954 [1997], lv denied 91 NY2d 941 [1998]).Present—Smith, J.P., DeJoseph, NeMoyer, Troutman and Scudder, JJ.