PEOPLE v. HILL (2003)

 Defendant appeals from a judgment convicting him following a jury trial of assault in the second degree (Penal Law § 120.05 [former (3) ] ), resisting arrest (§ 205.30) and false personation (§ 190.23). We reject the contention of defendant that County Court erred in denying his suppression motion.   The testimony at the suppression hearing establishes that the police officers had an objective, credible reason for initially approaching defendant and requesting information from him (see People v. Reyes, 83 N.Y.2d 945, 946, 615 N.Y.S.2d 316, 638 N.E.2d 961, cert. denied 513 U.S. 991, 115 S.Ct. 492, 130 L.Ed.2d 403;  see generally People v. Hollman, 79 N.Y.2d 181, 190-193, 581 N.Y.S.2d 619, 590 N.E.2d 204;  People v. De Bour, 40 N.Y.2d 210, 213, 386 N.Y.S.2d 375, 352 N.E.2d 562).   Defendant and two other suspects were observed suspiciously loitering together in an area known for illegal drug activity, and the officers observed drug paraphernalia on the ground at the feet of two of the suspects.   The officers thus were entitled to ask defendant his identity and other pedigree information, as well as his business at that location (see People v. Valerio, 274 A.D.2d 950, 951, 710 N.Y.S.2d 497, affd. 95 N.Y.2d 924, 721 N.Y.S.2d 601, 744 N.E.2d 136, cert. denied 532 U.S. 981, 121 S.Ct. 1623, 149 L.Ed.2d 485;  People v. Ocasio, 85 N.Y.2d 982, 985, 629 N.Y.S.2d 161, 652 N.E.2d 907;  Hollman, 79 N.Y.2d at 190-191, 581 N.Y.S.2d 619, 590 N.E.2d 204).   As a result of their initial observations at the scene, in combination with the nervous demeanor of defendant, his furtive movements, his inability to produce identification documents, and his apparent attempts to conceal his identity, the officers had a “founded suspicion that criminal activity [was] afoot,” thus entitling them to interfere with defendant to the extent necessary to gain explanatory information, but short of a forcible seizure (De Bour, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562;  see Hollman, 79 N.Y.2d at 191-193, 581 N.Y.S.2d 619, 590 N.E.2d 204;  Matter of James R., 76 N.Y.2d 825, 826, 560 N.Y.S.2d 114, 559 N.E.2d 1273).   Further, upon acquiring information from the police dispatcher establishing that defendant had falsely identified himself, the officers had at a minimum a reasonable suspicion of criminal activity (see People v. Battaglia, 86 N.Y.2d 755, 756, 631 N.Y.S.2d 128, 655 N.E.2d 169;  People v. Dewitt, 295 A.D.2d 937, 938, 743 N.Y.S.2d 344, lv. denied 98 N.Y.2d 709, 749 N.Y.S.2d 6, 778 N.E.2d 557, 98 N.Y.2d 767, 752 N.Y.S.2d 7, 781 N.E.2d 919).   The forcible stop and temporary detention of defendant for further questioning and investigation necessary to ascertain his identity were therefore permissible (see People v. Roque, 99 N.Y.2d 50, 54, 751 N.Y.S.2d 165, 780 N.E.2d 976;  People v. Gonzalez, 91 N.Y.2d 909, 910, 669 N.Y.S.2d 526, 692 N.E.2d 557;  see generally People v. Hicks, 68 N.Y.2d 234, 238-242, 508 N.Y.S.2d 163, 500 N.E.2d 861).

The evidence is legally sufficient to establish that the arresting officer sustained a physical injury within the meaning of Penal Law § 10.00(9), thus supporting the assault conviction (see People v. La Duca, 292 A.D.2d 851, 851-852, 738 N.Y.S.2d 800, lv. denied 98 N.Y.2d 652, 745 N.Y.S.2d 511, 772 N.E.2d 614;  People v. Lucas, 291 A.D.2d 890, 891, 737 N.Y.S.2d 732;  People v. Carter, 280 A.D.2d 977, 720 N.Y.S.2d 679, lv. denied 96 N.Y.2d 860, 730 N.Y.S.2d 34, 754 N.E.2d 1117;  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Defendant was not deprived of effective assistance of counsel.   Viewing the evidence, the law and the circumstances of this case, in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400;  People v. Madonia, 299 A.D.2d 876, 749 N.Y.S.2d 204).

 Although we reject defendant's contention that the sentence is unduly harsh or severe, we note that the court erroneously sentenced defendant to one year in jail on the conviction of false personation. Because the maximum sentence that may be imposed for that class B misdemeanor (see Penal Law § 190.23) is a definite term of three months (see § 70.15[2] ), we modify the judgment by reducing the sentence on the conviction of false personation from one year to three months (see People v. McLeod, 286 A.D.2d 959, 960, 730 N.Y.S.2d 921, lv. denied 97 N.Y.2d 758, 742 N.Y.S.2d 618, 769 N.E.2d 364;  People v. Coleman, 278 A.D.2d 891, 718 N.Y.S.2d 504, lv. denied 96 N.Y.2d 798, 726 N.Y.S.2d 376, 750 N.E.2d 78).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by reducing the sentence on the conviction of false personation from one year to three months and as modified the judgment is affirmed.

MEMORANDUM: