| People v Walker |
| 2017 NY Slip Op 03317 [149 AD3d 1537] |
| April 28, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Kalil T.Walker, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (James A. Hobbs of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Kelly Christine Wolford of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.), renderedJune 25, 2014. The judgment convicted defendant, upon his plea of guilty, of criminal possessionof a weapon in the second degree and assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a plea of guilty of criminalpossession of a weapon in the second degree (Penal Law § 265.03 [3]) and assaultin the second degree (§ 120.05 [3]), defendant contends that Supreme Court erred inrefusing to suppress evidence resulting from an unlawful pursuit. We reject that contention.
While patrolling in a high-crime area known for gang activity, drugs and weapons, officerseffectuated a traffic stop of a vehicle in which defendant was a passenger. Defendantimmediately exited the vehicle, positioning his body so that his back was to the officers and theycould not observe his right hand. When directed to return to the vehicle, defendant refused and,instead, turned to face the police officers. At that moment, the officers observed that defendanthad his right hand at his waistband. The officers "recognized that as a possible threat" becausetheir training and experiences had taught them that individuals "keep their weapons tucked insidetheir waistband right where [defendant] was reaching." Notably, there was no innocuousexplanation for such hand positioning because defendant's pants were not "sagging or beinganywhere other than at his waist." One of the officers drew his weapon, at which point defendantimmediately fled. During the ensuing chase, the officers saw defendant drop a "dark heavyobject" that was later recovered and identified as a firearm.
Contrary to defendant's contention, the officers' conduct "was justified in its inception and atevery subsequent stage of the encounter" (People v Nicodemus, 247 AD2d 833, 835[1998], lv denied 92 NY2d 858 [1998]). "[I]t is well settled that the police may pursue afleeing defendant if they have a reasonable suspicion that defendant has committed or is about tocommit a crime . . . While flight alone is insufficient to justify pursuit, defendant'sflight in response to an approach by the police, combined with other specific circumstancesindicating that the suspect may be engaged in criminal activity, may give rise to reasonablesuspicion, the necessary predicate for police pursuit" (People v Rainey, 110 AD3d 1464, 1465 [2013] [internal quotationmarks omitted]; see People v Sierra, 83 NY2d 928, 929 [1994]). "In determining whethera pursuit was justified by reasonable suspicion, the emphasis should not be narrowly focused on. . . any . . . single factor, but [rather should be based] on an evaluationof the totality of circumstances, which takes into account the realities of everyday life unfoldingbefore a trained officer" (People vBachiller, 93 AD3d 1196, 1197 [2012], lv dismissed 19 NY3d 861 [2012][internal quotation marks omitted]).
Here, we conclude that defendant's positioning and his refusal to comply with the officer'srequest to return to the vehicle, while not alone indicative of criminal behavior, could be[*2]"considered in conjunction with other attendant circumstances" toestablish the requisite reasonable suspicion of criminal activity (People v Martinez, 80NY2d 444, 448 [1992]). In our view, once defendant refused the officer's request to return to thevehicle and turned toward the officers, the officers could "reasonably suspect[ ] that defendantwas armed and posed a threat to their safety because his actions were directed to the area of hiswaistband, which was concealed from their view" (People v Fagan, 98 AD3d 1270, 1271 [2012], lv denied 20NY3d 1061 [2013], cert denied 571 US &mdash, 134 S Ct 262 [2013]). The officer whodrew his weapon was justified in doing so out of a concern for his own safety (see People vJames, 272 AD2d 75, 75 [2000], lv denied 95 NY2d 866 [2000], denied uponreconsideration 95 NY2d 965 [2000]; People v Wright, 100 AD2d 523, 525 [1984];see generally People v Benjamin, 51 NY2d 267, 271 [1980]). We thus conclude thatdefendant's flight, "in conjunction with the attendant circumstances, gave rise to the requisitereasonable suspicion justifying police pursuit" (People v Brown, 67 AD3d 1439, 1440 [2009], lv denied 14NY3d 798 [2010]; see Bachiller, 93 AD3d at 1197-1198; cf. People v Robbins,83 NY2d 928, 930 [1994]).
Inasmuch as "the pursuit of the defendant was justified, the gun he discarded during thepursuit was not subject to suppression as the product of unlawful police conduct" (People v Williams, 120 AD3d1441, 1442 [2014], lv dismissed 24 NY3d 1089 [2014]; see People v Gayden, 126 AD3d1518, 1518-1519 [2015], affd 28 NY3d 1035 [2016]; People v Feliciano, 140 AD3d1776, 1777 [2016], lv denied 28 NY3d 1027 [2016]). Moreover, for the same reason,defendant's statements to the police are "not subject to suppression as fruit of the poisonous tree"(Feliciano, 140 AD3d at 1777; see People v Sims, 106 AD3d 1473, 1474 [2013], appealdismissed 22 NY3d 992 [2013]). Present—Whalen, P.J., Lindley, NeMoyer, Curranand Troutman, JJ.