| People v Feliciano |
| 2016 NY Slip Op 04852 [140 AD3d 1776] |
| June 17, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRoberto Feliciano, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Victoria M. Argento, J.),rendered August 2, 2012. The judgment convicted defendant, upon his plea of guilty, ofcriminal 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 contends that County Court erred in refusing to suppress physicalevidence, i.e., a handgun, and his statement to the police. We reject that contention.According to the evidence presented at the suppression hearing, a police officer receivedradio dispatches that shots had been fired and that an anonymous caller had reported thata male suspect on a bicycle was in possession of a handgun. Upon responding to thevicinity within minutes of receiving the dispatches, the officer observed defendant, whogenerally matched the description of the suspect, riding a bicycle on the street (seegenerally People v Moczo, 174 AD2d 365, 365 [1991], lv denied 78 NY2d1013 [1991]). The officer pulled alongside defendant in his police vehicle and, withoutexiting his vehicle, the officer asked defendant to "stop his bike for a moment." Contraryto defendant's contention, we conclude that "the information provided in the. . . dispatch[es] coupled with the officer['s] observations provided the[officer] with 'an objective, credible reason for initially approaching defendant andrequesting information from him' " (People v Burnett, 126 AD3d 1491, 1492 [2015]; seegenerally People v Hollman, 79 NY2d 181, 184 [1992]; People v De Bour,40 NY2d 210, 223 [1976]). The conduct of the officer in asking defendant to stop hisbicycle for a moment did not elevate the encounter beyond a level one intrusion (seePeople v Reyes, 83 NY2d 945, 946 [1994], cert denied 513 US 991 [1994];People v Bent, 206 AD2d 926, 926 [1994], lv denied 84 NY2d 906[1994]).
Contrary to defendant's further contention, the officer engaged in mere observation,and was not in pursuit, when he followed defendant after defendant ignored the officer'squestion and continued to ride away on the bicycle (see People v Rainey, 122 AD3d 1314, 1314-1315 [2014],lv denied 25 NY3d 1169 [2015]; see generally People v Howard, 50NY2d 583, 592 [1980], cert denied 449 US 1023 [1980]). The testimony at thesuppression hearing established that the officer's conduct was unobtrusive and did notlimit defendant's freedom of movement (see Rainey, 122 AD3d at 1314-1315; People v Mack, 89 AD3d864, 865 [2011], lv denied 18 NY3d 959 [2012]). The court thus properlydetermined that defendant's subsequent act of reaching into his waistband, an area knownto the officer to be used for concealing firearms, and appearing to discard an objecttherefrom was not in response to any illegal police conduct, that the officer's ensuingpursuit of defendant when he began to flee was lawful, and that the abandoned handgunwas properly seized by the police (see People v Bachiller, 93 AD3d 1196, 1197-1198 [2012],lv dismissed 19 NY3d 861 [2012]; Mack, 89 AD3d at 865; People vFoster, 302 AD2d 403, 404 [2003], lv denied 100 NY2d 581 [2003]).Inasmuch as the officer's conduct was lawful, defendant's statement to the police is notsubject to suppression as fruit of the poisonous tree (see People v Sims, 106 AD3d 1473, 1474 [2013],appeal dismissed 22 NY3d 992 [2013]). Present—Centra, J.P., Peradotto,Lindley, DeJoseph and Curran, JJ.