PEOPLE v. CURTIS (2006)

Judgment, Supreme Court, New York County (Michael R. Ambrecht, J. at hearing;  Daniel P. FitzGerald, J. at plea and sentence), rendered October 16, 2003, convicting defendant of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 6 to 12 years, unanimously affirmed.

The court properly denied defendant's suppression motion.   The police had reasonable suspicion to pursue defendant based upon his sudden, unprovoked flight from a lawfully stopped vehicle, shortly after the driver, upon the approach of the police, had made a suspicious gesture in defendant's direction strongly indicating an effort to secrete something (see e.g. People v. Rivera, 286 A.D.2d 235, 729 N.Y.S.2d 481 [2001], lv. denied 97 N.Y.2d 760, 742 N.Y.S.2d 621, 769 N.E.2d 367 [2002] ).   Prior to the flight, the police had a founded suspicion of criminality that warranted a common-law inquiry of defendant (see e.g. People v. Williams, 300 A.D.2d 684, 685, 752 N.Y.S.2d 709 [2002], lv. denied 99 N.Y.2d 654, 760 N.Y.S.2d 118, 790 N.E.2d 292 [2003] ), whose flight elevated the officers' level of suspicion to the point where they were justified in pursuing him.   The record also supports the court's alternative finding that defendant's independent act of discarding the cocaine during the foot chase was a strategic, calculated decision and not a spontaneous reaction to the police activity (see People v. Boodle, 47 N.Y.2d 398, 402, 418 N.Y.S.2d 352, 391 N.E.2d 1329 [1979], cert. denied 444 U.S. 969, 100 S.Ct. 461, 62 L.Ed.2d 383 [1979] ).