| People v Brown |
| 2017 NY Slip Op 02196 [148 AD3d 1562] |
| March 24, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v DennisBrown, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (John J. Gilsenan, of the Pennsylvania andMichigan Bars, admitted pro hac vice, of counsel), for defendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Thomas J. Miller, J.), renderedFebruary 13, 2014. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofcriminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]). We agree with defendant that his waiver of the right to appeal isinvalid because "the minimal inquiry made by County Court [during the plea proceeding] wasinsufficient to establish that the court engage[d] . . . defendant in an adequatecolloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" (People v Williams, 136 AD3d1280, 1281 [2016], lv denied 27 NY3d 1141 [2016] [internal quotation marksomitted]). Further, to the extent that the purported waiver of the right to appeal was obtained atsentencing, it is not valid inasmuch as the court failed to obtain a knowing and voluntary waiverof that right at the time of the plea (seePeople v Sims, 129 AD3d 1509, 1510 [2015], lv denied 26 NY3d 935[2015]).
We reject defendant's contention that the court erred in refusing to suppress physicalevidence, i.e., cocaine, as the fruit of an allegedly unlawful approach and pursuit of defendant bythe police. Here, the evidence adduced at the suppression hearing established that, after having aconfidential informant conduct multiple controlled purchases of cocaine from the target of aninvestigation at a residence in Syracuse and making other observations that were indicative ofillegal drug transactions, the police obtained valid search warrants for the target and theresidence. While conducting further surveillance of the residence just prior to theexecution of the warrants by other officers, an experienced detective observed the target andanother man sitting in lawn chairs in the front yard with a third man standing nearby, and thenobserved a hand-to-hand interaction that the detective believed was a drug transaction betweenthe third man and another individual who had approached the residence. Approximately 20 to 25minutes after the detective reported her observations to them, officers wearing vests marked"police" pulled up to the residence in their vehicles to execute the warrants and observed twomen, including the target, sitting in lawn chairs and a third man, later identified as defendant,standing nearby. Defendant immediately ran away, was pursued by certain officers and, uponcolliding with one officer, he threw away a piece of knotted plastic that was subsequently seizedand determined to contain cocaine.
It is well established that, "[i]n evaluating police conduct, the court must determine whetherthe action taken was justified in its inception and at every subsequent stage of the encounter"(People v Nicodemus, 247 AD2d 833, 835 [1998], lv denied 92 NY2d 858[1998]; see People v De Bour, 40 NY2d 210, 215 [1976]). We reject defendant'scontention that the court erred in concluding that the police had a founded suspicion that criminalactivity was afoot when they arrived at the scene. Defendant's physical and temporal proximity toboth the residence and the target—each the subject of a valid search warrant issuedfollowing police investigation into illegal drug activities—as well as the reportedobservations of the experienced detective of a possible hand-to-hand drug transaction, providedthe officers with founded suspicion that criminal activity was afoot, which was sufficient tojustify even a level two intrusion under De Bour (see People v McKinley, 101 AD3d 1747, 1748 [2012], lvdenied 21 NY3d 1017 [2013]; People v Chin, 25 AD3d 461, 462 [2006], lv denied 6NY3d 846 [2006]; see generally People v Jones, 90 NY2d 835, 837 [1997]).
Contrary to defendant's further contention, the court properly determined that the officerswere justified in pursuing him when he fled from the residence. "[I]t is well settled that the policemay pursue a fleeing defendant if they have a reasonable suspicion that defendant has committedor is about to commit a crime" (People vRainey, 110 AD3d 1464, 1465 [2013] [internal quotation marks omitted]). While flightalone is insufficient to justify pursuit, "defendant's flight in response to an approach by thepolice, combined with other specific circumstances indicating that the suspect may beengaged in criminal activity, may give rise to reasonable suspicion, the necessary predicatefor police pursuit" (People v Sierra, 83 NY2d 928, 929 [1994] [emphasis added]; seeRainey, 110 AD3d at 1465). Here, defendant's immediate flight upon the arrival of theofficers, combined with the search warrants and the detective's observations indicating thatdefendant may have been engaged in criminal activity, furnished the requisite reasonablesuspicion to justify the officers' pursuit of defendant (see McKinley, 101 AD3d at1748-1749; People v Gray, 77AD3d 1308, 1308-1309 [2010]).
Finally, we note that "a defendant's attempt to discard evidence generally constitutes 'anindependent act involving a calculated risk' and, based on that act of abandonment, a defendant'los[es] his [or her] right to object to the [police seizing the evidence]' " (Rainey,110 AD3d at 1466). Inasmuch as defendant's abandonment of the piece of knotted plasticcontaining cocaine during the pursuit was not precipitated by illegal police conduct, defendanthad no right to object to the officers' seizure of that evidence, and denial of defendant's motion tosuppress was therefore proper (see Sierra, 83 NY2d at 930). Present—Centra, J.P.,Peradotto, Curran, Troutman and Scudder, JJ.