Opinion
06-16-2017
The PEOPLE of the State of New York, Respondent, v. Garry L. ROBINSON, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: WHALEN, P.J., SMITH, CARNI, CURRAN, AND SCUDDER, JJ.
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 location where defendant was detained by police officers. We reject defendant's contention that Supreme Court erred in refusing to suppress his statement as the alleged fruit of an illegal detention not supported by a reasonable suspicion of criminality. An officer testified that he observed defendant repeatedly grabbing at his waistband (see People v. Benjamin, 51 N.Y.2d 267, 271, 434 N.Y.S.2d 144, 414 N.E.2d 645 ; People v. Rivera, 286 A.D.2d 235, 235–236, 729 N.Y.S.2d 481, lv. denied 97 N.Y.2d 760, 742 N.Y.S.2d 621, 769 N.E.2d 367 ). The officer also observed defendant remove an object from his waistband and place the object in a bush when he saw a marked patrol car approach, and then return the item to his waistband after the patrol car passed (see generally People v. Meredith, 201 A.D.2d 674, 674–675, 607 N.Y.S.2d 979, lv. denied 83 N.Y.2d 1005, 616 N.Y.S.2d 487, 640 N.E.2d 155 ). The officer thereafter observed defendant remove the object from his waistband and hide it in the bush a second time when a second marked patrol car turned onto the street where defendant was standing. We conclude that the evidence thus supports the court's determination that defendant's conduct gave rise to a reasonable suspicion that he was in possession of illegal contraband, most likely a weapon (see People v. Roots, 13 A.D.3d 886, 887, 788 N.Y.S.2d 186, lv. denied 4 N.Y.3d 890, 798 N.Y.S.2d 735, 831 N.E.2d 980 ).
The evidence also supports the court's determination that defendant's act of discarding the weapon 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 A.D.3d 469, 470, 974 N.Y.S.2d 453, lv. denied 22 N.Y.3d 1157, 984 N.Y.S.2d 641, 7 N.E.3d 1129 ; People v. Morris, 105 A.D.3d 1075, 1077–1078, 962 N.Y.S.2d 760, lv. denied 22 N.Y.3d 1042, 981 N.Y.S.2d 376, 4 N.E.3d 388 ). Thus, the court also properly refused to suppress the weapon.
Finally, in light of defendant's resentencing, we do not consider his challenge to the severity of his original sentence, and we dismiss the appeal from the judgment to that extent (see People v. Williams, 136 A.D.3d 1280, 1284, 24 N.Y.S.3d 464, lv. denied 27 N.Y.3d 1141, 39 N.Y.S.3d 123, 61 N.E.3d 522, 29 N.Y.3d 954, 54 N.Y.S.3d 384, 76 N.E.3d 1087).
It is hereby ORDERED that said appeal from the judgment insofar as it imposed sentence is unanimously dismissed and the judgment is affirmed.