Opinion
KA 02-01397.
February 11, 2004.
Appeal from a judgment of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), rendered April 2, 2002. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (ELIZABETH CLARKE OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (WENDY EVANS LEHMANN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PINE, J.P., WISNER, SCUDDER, KEHOE, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the third degree (Penal Law § 265.02), defendant contends that Supreme Court erred in denying his motion to suppress the weapon. We reject that contention. Police officers received a dispatch of a burglary in progress being committed by a black male wearing a gray sweatshirt. Officers arrived at the scene within minutes and observed defendant, a black male who was a known burglar, walking down a driveway within 60 feet of the reported site of the burglary in progress. Defendant was wearing a gray sweatshirt and was the only person observed in the area. After engaging defendant in conversation, the officers attempted to frisk him for weapons. Defendant fled but was eventually apprehended, and a knife was found in his pocket.
We conclude that the officers had reasonable suspicion to stop and detain defendant ( see People v. Casillas, 289 A.D.2d 1063, 1063-1064, lv denied 97 N.Y.2d 752; see also People v. Torres, 239 A.D.2d 154, lv denied 90 N.Y.2d 893, 898). Given the nature of the dispatch, we further conclude that the officers were justified in attempting to frisk defendant ( see People v. Mack, 26 N.Y.2d 311, 317, cert denied 400 U.S. 960; see also People v. Smith, 292 A.D.2d 280, lv denied 98 N.Y.2d 681; Torres, 239 A.D.2d at 154). When defendant fled before the officers could frisk him, the officers were justified in their pursuit and seizure of him ( see People v. Ruben, 267 A.D.2d 961, lv denied 94 N.Y.2d 924; see also People v. Lipsey, 247 A.D.2d 246, lv denied 91 N.Y.2d 974; People v. Ellison, 222 A.D.2d 693, 694, lv denied 87 N.Y.2d 1019). We therefore conclude that the court properly denied defendant's suppression motion.