PEOPLE v. FLOW (2007)

Judgment, Supreme Court, New York County (James A. Yates, J. at hearing;  Ruth Pickholz, J. at plea and sentence), rendered May 26, 2005, convicting defendant of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of 3 years, unanimously affirmed.

 The court properly denied defendant's motion to suppress a weapon that was recovered from his person after he was arrested and transported to a police station.   The record supports the court's finding that the police had probable cause to arrest defendant, based upon the in-person statement of a citizen witness who identified himself by name, who told the police that he had personally observed defendant chasing two persons while holding a firearm, and who remained with the police and identified defendant as the person he observed (see People v. Hicks, 38 N.Y.2d 90, 378 N.Y.S.2d 660, 341 N.E.2d 227 [1975] ).   The fact that, following defendant's arrest, the identified witness declined to cooperate any further with the police does not warrant a different conclusion (see People v. Simpson, 244 A.D.2d 87, 91, 676 N.Y.S.2d 552 [1998], appeal withdrawn 92 N.Y.2d 947, 681 N.Y.S.2d 478, 704 N.E.2d 231 [1998] ).   The record also supports the court's alternative finding that the police at least had reasonable suspicion for a stop and frisk, which escalated to probable cause when defendant put up a violent struggle, refusing to be frisked (see People v. Henriquez, 128 A.D.2d 803, 513 N.Y.S.2d 504 [1987], lv. denied 69 N.Y.2d 1004, 517 N.Y.S.2d 1038, 511 N.E.2d 97 [1987] ).