Matter of Livan F.

2016 NY Slip Op 04306 [140 AD3d 409]

June 2, 2016

Appellate Division, First Department

As corrected through Wednesday, August 3, 2016

[*1]

In the Matter of Livan F., a Person Alleged to beJuvenile Delinquent, Appellant.

Tamara A. Steckler, The Legal Aid Society, New York (Raymond E. Rogers ofcounsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Tahirih M. Sadrieh of counsel),for presentment agency.

Order of disposition, Family Court, Bronx County (Peter J. Passidomo, J.), enteredon or about August 6, 2014, which adjudicated appellant a juvenile delinquent upon afact-finding determination that he committed an act that, if committed by an adult, wouldconstitute the crime of criminal possession of a controlled substance in the seventhdegree, and placed him on probation for a period of 12 months, unanimously affirmed,without costs.

The court properly denied appellant's motion to suppress a bag containing drugs,which he discarded while fleeing from the police. The recovery of the drugs was not theproduct of any unlawful police conduct.

Once the police arrived at the location specified in a radio report of a fight amongabout 20 youths involving sticks and other weapons, a security guard informed the policethat three male youths, who seemed to have initiated the fight, had fled east. The guarddescribed one of them as having a "medium" complexion and wearing a white shirt.Contrary to appellant's contention, the face-to-face encounter with the security guard wassignificantly more reliable than an anonymous tip (see People v Wallace, 89 AD3d 559, 560 [1st Dept 2011],lv dismissed 18 NY3d 963 [2012]; People v Herold, 282 AD2d 1, 6[2001], lv denied 97 NY2d 682 [2001]). Just a few minutes after the police hadreceived the radio report, they found three youths about 11/2 blocks east ofwhere they had encountered the security guard, and the testifying officer noticed thatappellant's shirt and skin tone matched the description provided by the guard.

Although that description was fairly generic, once appellant made eye contact withthe two uniformed police officers and then immediately grabbed the right side of hiswaistband, turned around, and started running away from the police, the totality of thecircumstances gave rise to reasonable suspicion justifying the police pursuit of appellant(see People v Pitman, 102AD3d 595, 596 [1st Dept 2013], lv denied 21 NY3d 1018 [2013]). Thetestifying officer convincingly explained that he recognized appellant's act of touchinghis waistband as a sign that he had a handgun, based on the officer's training andexperience, confirming his suspicion that appellant might be armed based on his matchwith a description of a youth who had initiated a large, armed and possibly gang-relatedfight (see People v White,117 AD3d 425 [1st Dept 2014], lv denied 23 NY3d 1044 [2014]).

Appellant's argument that the testifying officer failed to identify him in court, andthat the presentment agency failed to present any witness who could testify that appellantwas the person who was chased and arrested by the police, is unavailing. The testifyingofficer described the relevant facts leading up to and including his own recovery of thebag, based on his firsthand [*2]observations.Accordingly, his testimony established all the facts necessary to establish the legality ofthe police conduct, which was the only issue to be decided at the suppression hearing.Concur—Acosta, J.P., Saxe, Gische, Webber and Kahn, JJ.