PEOPLE v. TOOLE (2025)

Judgment, Supreme Court, New York County (Laura A. Ward, J. at suppression motion;  Ellen Biben, J. at CPL 30.30 motion;  Althea E.M. Drysdale, J. at trial and sentencing), rendered February 25, 2020, convicting defendant of criminal possession of a weapon in the second degree, and sentencing him to seven years of imprisonment, unanimously affirmed.

Defendant's suppression motion was properly denied.  Within minutes of receiving a radio run of a reported shooting on the ninth floor of an apartment building, officers responded to the location, found defendant standing alone in the hallway, and smelled gunpowder.  These circumstances, as defendant concedes, “provided, at least, a founded suspicion justifying a common-law inquiry” (People v. Michimani, 115 A.D.3d 528, 529, 981 N.Y.S.2d 725 [1st Dept. 2014], lv denied 23 N.Y.3d 1040, 993 N.Y.S.2d 254, 17 N.E.3d 509 [2014];  see also People v. Brown, 240 A.D.2d 163, 657 N.Y.S.2d 427 [1st Dept. 1997], lv denied 90 N.Y.2d 1010, 666 N.Y.S.2d 104, 688 N.E.2d 1388 [1997]).  Pursuant to his right to inquire, the arresting officer then approached defendant, without drawing his gun, and asked whether defendant lived in the building.  In response to the officer's relatively innocuous question, defendant began exhibiting unusually nervous behavior, such as trembling, sweating (see People v. Nichols, 250 A.D.2d 370, 370–371, 672 N.Y.S.2d 326 [1st Dept. 1998], lv denied 92 N.Y.2d 881, 678 N.Y.S.2d 28, 700 N.E.2d 566 [1998]), and repeatedly pressing the elevator button to leave the ninth floor (see People v. Perez, 142 A.D.3d 410, 414–415, 37 N.Y.S.3d 243 [1st Dept. 2016], affd 31 N.Y.3d 964, 73 N.Y.S.3d 508, 96 N.E.3d 772 [2018]).  At that point, the officer saw a bulge near defendant's waist area, which provided “reasonable suspicion” that defendant was “armed or dangerous” (People v. Johnson, 40 N.Y.3d 172, 176, 195 N.Y.S.3d 639, 217 N.E.3d 659 [2023]) and “justified the officer's minimally intrusive safety precaution of grabbing the bulge” (People v. Hunter, 178 A.D.3d 459, 460, 115 N.Y.S.3d 241 [1st Dept. 2019], lv denied 34 N.Y.3d 1159, 120 N.Y.S.3d 268, 142 N.E.3d 1170 [2020]).  When defendant slapped the officer's hands away and fled during the “ongoing, lawful level three stop,” police were authorized to pursue him (People v. Cleveland, ––– N.Y.3d ––––, ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 02144, *3 [2025]), and “[t]he subsequent recovery of a firearm ․ provided probable cause for his arrest” (Michimani, 115 A.D.3d at 529, 981 N.Y.S.2d 725).

Defendant failed to preserve his challenge to the court's speedy trial decision on the ground that the People's off-calendar statement of readiness was illusory (see e.g. People v. Allard, 28 N.Y.3d 41, 46, 41 N.Y.S.3d 196, 63 N.E.3d 1140 [2016];  People v. Torres, 205 A.D.3d 524, 525, 167 N.Y.S.3d 503 [1st Dept. 2022], lv denied 39 N.Y.3d 942, 177 N.Y.S.3d 520, 198 N.E.3d 763 [2022]), and we decline to review it in the interest of justice.  As an alternative holding, we reject it on the merits (see e.g. People v. Brown, 28 N.Y.3d 392, 404, 45 N.Y.S.3d 320, 68 N.E.3d 45 [2016];  People v. Aguilar, 231 A.D.3d 454, 455, 219 N.Y.S.3d 291 [1st Dept. 2024], lv denied 43 N.Y.3d 929, 229 N.Y.S.3d 78, 254 N.E.3d 622 [2025]).

We perceive no basis for reducing the sentence.