| People v Robinson |
| 2017 NY Slip Op 04995 [151 AD3d 1851] |
| June 16, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Garry L.Robinson, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joanne M. Winslow, J.),rendered November 4, 2013. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a weapon in the second degree and criminal possession of a weapon in thethird degree.
It is hereby ordered that said appeal from the judgment insofar as it imposed sentence isunanimously dismissed and the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of,inter alia, criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]), based upon the recovery of a revolver from a bush near the locationwhere defendant was detained by police officers. We reject defendant's contention that SupremeCourt erred in refusing to suppress his statement as the alleged fruit of an illegal detention notsupported by a reasonable suspicion of criminality. An officer testified that he observeddefendant repeatedly grabbing at his waistband (see People v Benjamin, 51 NY2d 267,271 [1980]; People v Rivera, 286 AD2d 235, 235-236 [2001], lv denied 97 NY2d760 [2002]). The officer also observed defendant remove an object from his waistband and placethe object in a bush when he saw a marked patrol car approach, and then return the item to hiswaistband after the patrol car passed (see generally People v Meredith, 201 AD2d 674,674-675 [1994], lv denied 83 NY2d 1005 [1994]). The officer thereafter observeddefendant remove the object from his waistband and hide it in the bush a second time when asecond marked patrol car turned onto the street where defendant was standing. We conclude thatthe evidence thus supports the court's determination that defendant's conduct gave rise to areasonable suspicion that he was in possession of illegal contraband, most likely a weapon (see People v Roots, 13 AD3d 886,887 [2004], lv denied 4 NY3d 890 [2005]).
The evidence also supports the court's determination that defendant's act of discarding theweapon in the bush before the officers detained him constituted an abandonment, i.e., a strategic,calculated decision not made in response to any police illegality (see People v Johnson, 111 AD3d469, 470 [2013], lv denied 22 NY3d 1157 [2014]; People v Morris, 105 AD3d 1075,1077-1078 [2013], lv denied 22 NY3d 1042 [2013]). Thus, the court also properlyrefused to suppress the weapon.
Finally, in light of defendant's resentencing, we do not consider his challenge to the severityof his original sentence, and we dismiss the appeal from the judgment to that extent (see People v Williams, 136 AD3d1280, 1284 [2016], lv denied 27 NY3d 1141 [2016], 29 NY3d 954 [2017]).Present—Whalen, P.J., Smith, Carni, Curran and Scudder, JJ.