| People v Bowers |
| 2017 NY Slip Op 02051 [148 AD3d 1042] |
| March 22, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Daquan Bowers, Appellant. |
Lynn W. L. Fahey, New York, NY (Ronald Zapata of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, William H. Branigan, and Josette Simmons of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Braun, J.),rendered May 5, 2014, convicting him of robbery in the first degree (three counts), criminalpossession of a weapon in the second degree, reckless endangerment in the first degree, criminalpossession of stolen property in the fifth degree (two counts), and criminal mischief in the fourthdegree, upon his plea of guilty, and imposing sentence. The appeal brings up for review thedenial, after a hearing (Demakos, J.H.O.), of that branch of the defendant's omnibus motionwhich was to suppress physical evidence.
Ordered that the judgment is affirmed.
Shortly before midnight on December 20, 2012, police officers responded to an armedrobbery at Blarneys Bar, in Queens. One of the victims told the officers that he had been robbedat gunpoint by four young black men dressed in black and gray hoodies. The officers were alsotold that the robbers had taken money and three cell phones. While some of the officers begancanvassing the area, others remained at the scene, using a tracking application and informationsupplied by one of the victims to locate one of the stolen cell phones. Within minutes, the policewere able to track the stolen phone to a car traveling westbound on Rockaway Boulevard with"numerous people" inside. There were no other cars or pedestrians in the vicinity and the car wastraveling in the direction indicated by the tracking software. The police made the decision to stopthe vehicle at the intersection of 92nd Street and Rockaway Boulevard, and the tracking softwareconfirmed that the signal remained stationary at that precise location.
A forcible stop and detention is permissible "[w]here a police officer entertains a reasonablesuspicion that a particular person has committed, is committing or is about to commit a felony ormisdemeanor" (People v De Bour, 40 NY2d 210, 223 [1976]; see CPL 140.50[1]). Reasonable suspicion has been defined as "that quantum of knowledge sufficient to inducean ordinarily prudent and cautious [person] under the circumstances to believe criminal activityis at hand" (People v Martinez, 80 NY2d 444, 448 [1992] [internal quotation marksomitted]). "Resolution of the issue of whether the police officers possessed reasonable suspicionrequires evaluation of the totality of the circumstances" (People v Loper, 115 AD3d 875, 879 [2014]). Here, it wasreasonable for the officers to [*2]believe that individuals inpossession of a stolen cell phone approximately 30 minutes after the robbery were the samepeople who had committed the robbery.
The defendant's contention that the People failed to lay a proper foundation regarding thereliability of the tracking software is unpreserved for appellate review, as no objection was madeto the officer's testimony regarding the use of such software (see CPL 470.05 [2]; People v Hinspeter, 12 AD3d 617,618 [2004]), and the defendant did not request a hearing pursuant to Frye v United States(293 F 1013 [DC Cir 1923]).
The defendant raises no other issue on appeal.
Therefore, the Supreme Court properly denied that branch of the defendant's omnibus motionwhich was to suppress physical evidence obtained after the legal stop. Rivera, J.P., Balkin,Chambers and Cohen, JJ., concur.