Opinion
332 KA 13-00818.
03-24-2017
The PEOPLE of the State of New York, Respondent, v. Justin JONES, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of Counsel), for Respondent.
PRESENT: SMITH, J.P., CARNI, LINDLEY, DeJOSEPH, AND SCUDDER, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3 ] ). We previously held the case, reserved decision, and remitted the matter to Supreme Court for a probable cause hearing to determine the lawfulness of defendant's arrest and the admissibility of evidence obtained by the police as a result thereof (People v.
Jones, 132 A.D.3d 1388, 17 N.Y.S.3d 569 ). A different Supreme Court Justice conducted the probable cause hearing upon remittal, and we conclude that the court properly determined that there was reasonable suspicion to detain defendant until the showup identification procedure was conducted.
Contrary to defendant's contention, the People established that there was reasonable suspicion to believe that defendant "was involved in a felony or misdemeanor," thus justifying his forcible stop and detention (People v. Hollman, 79 N.Y.2d 181, 185, 581 N.Y.S.2d 619, 590 N.E.2d 204 ; see generally People v. Cantor, 36 N.Y.2d 106, 112–113, 365 N.Y.S.2d 509, 324 N.E.2d 872 ). A police officer who had been called to the scene in the early morning hours heard numerous gunshots and saw a cloud of smoke coming from the area of those gunshots, i.e., an area between two vehicles. Immediately thereafter, the officer observed defendant and another man "pop[ ] up" from behind one of the vehicles. Inasmuch as defendant's temporal and spatial proximity to the area from where the shots were fired "made it highly unlikely that the suspect had departed and that, almost at the same moment, an innocent person ... coincidentally arrived on the scene" (People v. Johnson, 63 A.D.3d 518, 518, 881 N.Y.S.2d 81, lv. denied 13 N.Y.3d 797, 887 N.Y.S.2d 546, 916 N.E.2d 441 ; cf. People v. Mabeus, 68 A.D.3d 1557, 1562, 893 N.Y.S.2d 644, lv. denied 14 N.Y.3d 842, 901 N.Y.S.2d 148, 927 N.E.2d 569 ), we conclude that the officer had the requisite reasonable suspicion to stop and detain defendant.
Contrary to defendant's further contention, he was not subjected to a de facto arrest based on the fact that he was held for approximately 45 minutes until the showup identification procedure could take place where, as here, the identification procedure took place "in the course of a continuous, ongoing investigation" (People v. Woodard, 83 A.D.3d 1440, 1441, 919 N.Y.S.2d 718, lv. denied 17 N.Y.3d 803, 929 N.Y.S.2d 111, 952 N.E.2d 1106 ; see People v. Boyd, 272 A.D.2d 898, 899, 709 N.Y.S.2d 269, lv. denied 95 N.Y.2d 850, 714 N.Y.S.2d 1, 736 N.E.2d 862 ; cf. People v. Ryan, 12 N.Y.3d 28, 30–31, 876 N.Y.S.2d 672, 904 N.E.2d 808 ; see generally People v. Brisco, 99 N.Y.2d 596, 597, 758 N.Y.S.2d 262, 788 N.E.2d 611 n). Finally, we conclude that, once defendant was positively identified by two witnesses, there was probable cause for his arrest (see People v. Carson, 122 A.D.3d 1391, 1392, 997 N.Y.S.2d 881, lv. denied 25 N.Y.3d 1161, 15 N.Y.S.3d 293, 36 N.E.3d 96 ; People v. Dumbleton, 67 A.D.3d 1451, 1452, 888 N.Y.S.2d 817, lv. denied 14 N.Y.3d 770, 898 N.Y.S.2d 102, 925 N.E.2d 107 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.