Opinion
10-17-2017
The PEOPLE of the State of New York, Respondent, v. John R. SIMMONS, Appellant.
David C. Schopp, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of counsel), for appellant. John J. Flynn, District Attorney, Buffalo (Julie Bender Fiske of counsel), for respondent.
David C. Schopp, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of counsel), for appellant.
John J. Flynn, District Attorney, Buffalo (Julie Bender Fiske of counsel), for respondent.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be affirmed. The determination regarding a founded suspicion of criminality, justifying the arresting officer's demand that defendant "show his hands," involves a mixed question of law and fact (see People v. Mercado, 25 N.Y.3d 936, 937, 5 N.Y.S.3d 741, 28 N.E.3d 1181 [2015] ; People v. Valerio, 95 N.Y.2d 924, 925, 721 N.Y.S.2d 601, 744 N.E.2d 136 [2000] ). Based on the police officer's experience handling gun cases, the high crime rate and gang violence in the patrol area, the recent reports of gunshots fired near the location where defendant was first observed, and defendant's clutching of his waistband, there is record evidence to support a finding of founded suspicion. The totality of these circumstances provides sufficient indicia of criminality to warrant a level-two inquiry under People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 (1976). Therefore, the determinations made below are beyond our further review.
Chief Judge DiFIORE and Judges RIVERA, STEIN, FAHEY, GARCIA, WILSON and FEINMAN concur.
Order affirmed, in a memorandum.