Opinion
KA 19–02097 450
05-01-2020
The PEOPLE of the State of New York, Respondent, v. Keynone D. COLE, Defendant–appellant.
PAUL G. DELL, BUFFALO, FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
PAUL G. DELL, BUFFALO, FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of criminal possession of a weapon in the second degree ( Penal Law § 265.03[3] ) and criminal possession of a controlled substance in the third degree (§ 220.16[12] ). Supreme Court properly refused to suppress both the gun recovered from the parked car in which defendant was seated and the drugs recovered from defendant's person. The police received an in-person report from a concerned citizen that two individuals matching the description of defendant and his accomplice were "up to no good" inside a specific car at a local park. Contrary to defendant's contention, such a report was a sufficient basis upon which to conduct the level one inquiry that ultimately resulted in the discovery of the contraband at issue (see People v. Habeeb, 177 A.D.3d 1271, 1272–1273, 112 N.Y.S.3d 386 [4th Dept. 2019], lv . denied 34 N.Y.3d 1159, 120 N.Y.S.3d 276, 142 N.E.3d 1178 [2020] ; see generally People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ). Defendant's related contention that the police actually conducted a level three inquiry without the requisite reasonable suspicion is unpreserved for appellate review, and we decline to review it as a matter of discretion in the interest of justice (see People v. Smith, 145 A.D.3d 1631, 1632, 44 N.Y.S.3d 838 [4th Dept. 2016], lv . denied 29 N.Y.3d 1086, 64 N.Y.S.3d 176, 86 N.E.3d 263 [2017] ).