PEOPLE v. AGRAMONTE (2008)

Judgment, Supreme Court, New York County (Rena K. Uviller, J. at suppression hearing;  Michael J. Obus, J. at plea and sentence), rendered October 26, 2006, convicting defendant of attempted criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a term of 4 years, unanimously affirmed.

The court properly denied defendant's suppression motion.  An officer saw defendant holding his hand over the front of his waist, partially obscuring what appeared to the barrel of a derringer protruding from his waistband.  Although this object ultimately turned out to be a distinctively shaped belt buckle, the hearing court examined the buckle and made a determination that, from the officer's vantage point at the time of the incident, the buckle would have reasonably appeared to be a firearm.  We find no reason to disturb that factual determination (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ).  Moreover, the officer simply made a common-law inquiry, but defendant ignored the officer's attempts to engage him and, prior to any police action constituting a seizure, he “actively fled from the police” (People v. Moore, 6 N.Y.3d 496, 500–501, 814 N.Y.S.2d 567, 847 N.E.2d 1141 [2006] ), which heightened the level of suspicion (see People v. Sierra, 83 N.Y.2d 928, 930, 615 N.Y.S.2d 310, 638 N.E.2d 955 [1994] ).  Accordingly, defendant's abandonment of contraband during his flight from pursuit was not precipitated by any unlawful police conduct.