Opinion
1012 KA 16–01507
11-16-2018
The PEOPLE of the State of New York, Respondent, v. Steven L. TYLER, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JULIE BENDER FISKE OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JULIE BENDER FISKE OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal 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] ), defendant contends that County Court erred in denying that part of his omnibus motion seeking to suppress a handgun and his oral statements to the police.
We reject defendant's contention that the testimony of one of the police officers at the suppression hearing was incredible as a matter of law. It is well settled that "great deference should be given to the determination of the suppression court, which had the opportunity to observe the demeanor of the witnesses and to assess their credibility, and its factual findings should not be disturbed unless clearly erroneous" ( People v. Layou, 134 A.D.3d 1510, 1511, 23 N.Y.S.3d 517 [4th Dept. 2015], lv denied 27 N.Y.3d 1070, 38 N.Y.S.3d 841, 60 N.E.3d 1207 [2016], reconsideration denied 28 N.Y.3d 932, 40 N.Y.S.3d 360, 63 N.E.3d 80 [2016] ; see People v. Harris, 147 A.D.3d 1354, 1355, 46 N.Y.S.3d 746 [4th Dept. 2017], lv denied 29 N.Y.3d 1032, 62 N.Y.S.3d 301, 84 N.E.3d 973 [2017] ). Inasmuch as the testimony of the relevant police officer does not appear to be "patently tailored to nullify constitutional objections ... [or] impossible of belief because it is manifestly untrue, physically impossible, contrary to experience, or self contradictory" ( People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500 [2d Dept. 1974] ), we find no basis in the record to disturb the suppression court's determination to credit the officer's testimony (see People v. Hale, 130 A.D.3d 1540, 1541, 14 N.Y.S.3d 603 [4th Dept. 2015], lv denied 26 N.Y.3d 1088, 23 N.Y.S.3d 645, 44 N.E.3d 943 [2015], reconsideration denied 27 N.Y.3d 998, 38 N.Y.S.3d 108, 59 N.E.3d 1220 [2016] ).
We reject defendant's further contentions that the police lacked an objective, credible reason to justify their initial request for information and that they lacked a founded suspicion of criminality to justify a common-law inquiry. The testimony at the suppression hearing establishes that, shortly before 9:00 p.m. on a freezing-cold night in January, a Buffalo police officer observed defendant walking in a high-crime area where there had been a recent increase in shootings and where there was no other pedestrian or vehicular traffic. The officer was in the passenger seat of a marked patrol vehicle driven by his partner, and the officers were following two other marked police vehicles. As the second police vehicle passed defendant, the officer saw him look back at the police vehicle, gesture toward his waistband, and lift up something in the area of his right hip. When the third police vehicle came into defendant's view, defendant looked stunned: his eyes widened, he slowed his pace, and he appeared unsure of what to do. Although it was dark outside, the street was well lit, and the officer could see a bulge at defendant's right hip. The officer rolled down his window and asked defendant where he was headed. Defendant gave a seemingly implausible response, given the temperature and the distance to his claimed destination, and the officer asked defendant to step over to the patrol vehicle, intending to engage him in further conversation. The officers did not activate their overhead lights or siren and remained inside their patrol vehicle. As defendant walked toward the patrol vehicle, however, the officer observed that the bulge in his waistband was consistent with a handgun. As defendant bent toward the officer's open window, the officer told defendant to wait and asked what was in his waistband. Defendant restated where he was going, and the officer again asked what was in his waistband. Defendant swore, pulled out a handgun, and fled. The officer thereafter exited the patrol vehicle and pursued defendant.
We conclude that "the action taken [by the police] was justified in its inception and at every subsequent stage of the encounter" ( People v. Nicodemus , 247 A.D.2d 833, 835, 669 N.Y.S.2d 98 [4th Dept. 1998], lv denied 92 N.Y.2d 858, 677 N.Y.S.2d 88, 699 N.E.2d 448 [1998] ; see generally People v. Hollman, 79 N.Y.2d 181, 184–185, 581 N.Y.S.2d 619, 590 N.E.2d 204 [1992] ; People v. De Bour , 40 N.Y.2d 210, 222–223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ). "[I]n light of the late hour, the cold weather, the absence of other pedestrian or automobile traffic, ... the presence of [defendant] in a high[-]crime area" ( People v. Riddick , 70 A.D.3d 1421, 1422, 894 N.Y.S.2d 260 [4th Dept. 2010], lv denied 14 N.Y.3d 844, 901 N.Y.S.2d 150, 927 N.E.2d 571 [2010] ), and the officer's observations of defendant, the officer had an objective, credible reason to ask defendant where he was going (see generally People v. Garcia, 20 N.Y.3d 317, 322, 959 N.Y.S.2d 464, 983 N.E.2d 259 [2012] ; De Bour , 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ). Furthermore, defendant's implausible answer to the officer's question and the officer's observations of defendant provided a founded suspicion of criminality (see generally De Bour , 40 N.Y.2d at 215, 386 N.Y.S.2d 375, 352 N.E.2d 562 ; People v. Cantor , 36 N.Y.2d 106, 113–114, 365 N.Y.S.2d 509, 324 N.E.2d 872 [1975] ). Finally, defendant's subsequent display of a handgun and his flight justified the officer's pursuit of him (see People v. Daniels , 147 A.D.3d 1392, 1393, 46 N.Y.S.3d 358 [4th Dept. 2017], lv denied 29 N.Y.3d 1077, 64 N.Y.S.3d 167, 86 N.E.3d 254 [2017] ; see generally People v. Martinez , 59 A.D.3d 1071, 1072, 873 N.Y.S.2d 807 [4th Dept. 2009], lv denied 12 N.Y.3d 856, 881 N.Y.S.2d 667, 909 N.E.2d 590 [2009] ).