Summary
In Gaydon, the court found the police had a founded suspicion that criminal activity was afoot where the defendant matched the general description provided in an anonymous 911 tip of men displaying hand guns.
Summary of this case from People v. BrockOpinion
369 KA 11-00939
03-27-2015
The PEOPLE of the State of New York, Respondent, v. John GAYDEN, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Daniel Gross of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.
Opinion
MEMORANDUM: On appeal from a judgment convicting him upon his plea of guilty of two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03[1][b] ; [3] ) and one count of criminal possession of a weapon in the third degree (§ 265.02[1] ), defendant contends that County Court erred in refusing to suppress the weapon he discarded while he was being pursued by the police. We reject that contention. According to the evidence at the suppression hearing, there was a radio dispatch concerning an anonymous tip that two individuals were carrying handguns in a certain location, and a police officer who arrived at the scene less than two minutes after the dispatch observed that defendant and another individual matched the general description of the suspects and were within a block of the location described in the tip. The officer thus had a founded suspicion that criminal activity was afoot, justifying his initial common-law inquiry of defendant (see People v. Price, 109 A.D.3d 1189, 1190, 971 N.Y.S.2d 635, lv. denied 22 N.Y.3d 1043, 981 N.Y.S.2d 376, 4 N.E.3d 388 ; see generally People v. Stewart, 41 N.Y.2d 65, 69, 390 N.Y.S.2d 870, 359 N.E.2d 379 ). Defendant's flight upon seeing the officer exit his vehicle provided the officer with the requisite reasonable suspicion of criminal activity to warrant his pursuit of defendant (see Price, 109 A.D.3d at 1190, 971 N.Y.S.2d 635 ). Defendant dropped the gun during the pursuit, which gave rise to probable cause to arrest defendant (see People v. Wilson, 49 A.D.3d 1224, 1224–1225, 853 N.Y.S.2d 773, lv. denied 10 N.Y.3d 966, 863 N.Y.S.2d 150, 893 N.E.2d 456 ; People v. Lindsay, 249 A.D.2d 937, 938, 672 N.Y.S.2d 577, lv. denied 92 N.Y.2d 900, 680 N.Y.S.2d 64, 702 N.E.2d 849 ), and “the recovery of the gun discarded during [defendant's] flight was lawful inasmuch as the officer's pursuit ... of defendant [was] lawful” (People v. Norman, 66 A.D.3d 1473, 1474, 885 N.Y.S.2d 836, lv. denied 13 N.Y.3d 940, 895 N.Y.S.2d 331, 922 N.E.2d 920 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.