Opinion
2685
December 31, 2002.
Judgment, Supreme Court, Bronx County (Caesar Cirigliano, J.), rendered September 15, 1998, convicting defendant, after a jury trial, of criminal possession of a weapon in the second and third degrees, and sentencing him, as a persistent violent felony offender, to concurrent terms of 20 years to life and 13 years to life, respectively, unanimously affirmed.
Daniel B. Navabpour, for Respondent.
Susan Epstein, for Defendant-Appellant.
Before: SAXE, J.P., SULLIVAN, ELLERIN, LERNER, GONZALEZ, JJ.
Defendant's suppression motion was properly denied. There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v. Prochilo, 41 N.Y.2d 759, 761). The police had reasonable suspicion to pursue defendant based on a radio report of a man, possibly armed, beating a woman in front of a specific address, coupled with their observations of an argument between defendant and a woman, who were the only persons present at that location, followed by defendant's immediate flight upon the approach of the police and the woman's act of pointing at defendant (see People v. Martinez, 80 N.Y.2d 444; People v. Leung, 68 N.Y.2d 734). Under the circumstances, the pointing could reasonably be viewed as a nonverbal accusation (see People v. Dickerson, 238 A.D.2d 147, lv denied 80 N.Y.2d 857), and since defendant was already fleeing, the police were in no position to stop and ask the woman why she was pointing.
Defendant's constitutional challenge to the procedure under which he was sentenced as a persistent violent felony offender is unpreserved for appellate review and, in any event, is without merit (see People v. Rosen, 96 N.Y.2d 329, cert denied 534 U.S. 899, 122 S.Ct. 224).
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.