Summary
In Matter of Jaime G. (208 A.D.2d 382), the police car made a U-turn to approach the appellant in a "`non-threatening'" manner, without turning on the sirens or the flashing lights.
Summary of this case from People v. ThorntonOpinion
October 6, 1994
Appeal from the Family Court, Bronx County (Harold J. Lynch, J.).
Family Court properly denied suppression of the handgun that appellant discarded upon observing the officers approach him in their patrol car. The approach was justified to protect appellant's life or health (Family Ct Act § 1024), appellant having twice ignored the officers' warnings to leave a dangerous neighborhood late at night (see, Matter of Jose R., 201 A.D.2d 260). Since the approach was lawful, the recovery of property discarded by appellant as a result of the approach was also lawful (People v. Braithwaite, 172 A.D.2d 548, 549, lv denied 78 N.Y.2d 920, citing People v. Leung, 68 N.Y.2d 734). The result would be the same even if the officers had been acting not in their public service role under Family Court Act § 1024 but as enforcers of the criminal law (see, People v. De Bour, 40 N.Y.2d 210, 218), since, upon observing appellant a third time, they had an "articulable reason" to approach and inquire of him his reason for being in the area (People v. Hollman, 79 N.Y.2d 181, 191). Contrary to appellant's characterization of the police action as an "aggressive" U-turn and a "pursuit", the record shows that the approach was made in a "non-threatening" manner (supra, at 191), i.e., without sirens or flashing lights. And even if the approach were deemed unduly intense, and thus unlawful, appellant's response of running around the corner, placing the gun behind a refrigerator and then walking away showed that his discarding of the gun was not "a spontaneous reaction to a sudden and unexpected confrontation with the police" but "an independent act involving a calculated risk" "to rid himself of the weapon" (People v. Boodle, 47 N.Y.2d 398, 404, cert denied 444 U.S. 969; see, People v. Marrero, 173 A.D.2d 244, 245, lv dismissed 78 N.Y.2d 969).
Concur — Sullivan, J.P., Carro, Rosenberger, Wallach and Rubin, JJ.