Opinion
December 23, 1980
Appeal from the Monroe County Court.
Present — Hancock, Jr., J.P., Schnepp, Callahan, Doerr and Witmer, JJ.
Judgment unanimously modified, on the law, and, as modified, affirmed, in accordance with the following memorandum: Upon defendant's prior appeal from convictions of second degree murder (felony murder), first degree robbery, and petit larceny, we reserved decision and remitted the case for a further hearing and findings on the issues of the legality of the stop of his automobile and the reasonableness of the subsequent detention of defendant. We find that the record of the hearing on remittitur supports the trial court's determination that the stop of defendant's vehicle was based on reasonable suspicion (see People v. Sobotker, 43 N.Y.2d 559, 563-564; cf. People v. Wilson, 54 A.D.2d 1116) and that the subsequent pursuit, apprehension, and pat down of defendant when he ran from his car were justified (see Terry v. Ohio, 392 U.S. 1). Upon his apprehension defendant consented to the search of his automobile. The ensuing search which produced incriminating evidence constituting probable cause for the arrest was proper. The trial court correctly refused to suppress defendant's confession given subsequently at police headquarters. We reject defendant's contention that the robbery conviction should be reversed and the count dismissed as a lesser included offense of felony murder (see People v. Perdue, 70 A.D.2d 477, 479). The petit larceny conviction, however, is a lesser included offense of robbery and that count is dismissed (see People v. Perdue, supra, p 481).