THE PEOPLE OF THE STATE OF NEW YORK APPELLANT v. DESMOND JOHNSON DEFENDANT RESPONDENT (2012)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law, that part of the motion to suppress the handgun is denied, and the matter is remitted to Supreme Court, Erie County, for further proceedings on the indictment.

Memorandum:  Upon the motion of defendant seeking, inter alia, to suppress a handgun seized by police following an allegedly unlawful pursuit of defendant, Supreme Court granted that part of the motion to suppress the handgun.   Following entry of the order granting that part of defendant's motion, the People moved for leave to reargue with respect thereto.   The court granted the People's motion insofar as it sought leave to reargue and adhered to its prior determination.   The People appealed from the original order and failed to appeal from the subsequent order entered on reargument, which superseded the original order (see Loafin' Tree Rest. v. Pardi [appeal No. 1], 162 A.D.2d 985).   We exercise our discretion to treat the notice of appeal as one taken from the subsequent order (see CPLR 5520[c];  see e.g. Kanter v. Pieri, 11 AD3d 912, 912), and now reverse.

The People do not contend that the court erred in determining that the pursuit of defendant by the police was unlawful (see generally People v. Holmes, 81 N.Y.2d 1056, 1057–1058;  People v. De Bour, 40 N.Y.2d 210, 223).   They do contend, however, and we agree, that the unlawful pursuit of defendant does not require suppression of the handgun.   The undisputed testimony established that defendant “abandoned the [hand]gun ․ before any contact with police, and thus it cannot be said that the abandonment was ‘coerced or precipitated by unlawful police activity’ “ (People v. Stevenson, 273 A.D.2d 826, 827, quoting People v. Ramirez–Portoreal, 88 N.Y.2d 99, 110;  see generally People v. Boodle, 47 N.Y.2d 398, 404–405, cert denied 444 U.S. 969).   The court therefore erred in rejecting the People's contention that the handgun was abandoned and in suppressing it (see e.g. Stevenson, 273 A.D.2d at 827;  see generally Ramirez–Portoreal, 88 N.Y.2d at 110;  Boodle, 47 N.Y.2d at 402–404).

Frances E. Cafarell

Clerk of the Court