THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JOHN GAYDEN DEFENDANT APPELLANT (2015)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  On appeal from a judgment convicting him upon his plea of guilty of two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03[1][b];  [3] ) and one count of criminal possession of a weapon in the third degree (§ 265.02[1] ), defendant contends that County Court erred in refusing to suppress the weapon he discarded while he was being pursued by the police.   We reject that contention.   According to the evidence at the suppression hearing, there was a radio dispatch concerning an anonymous tip that two individuals were carrying handguns in a certain location, and a police officer who arrived at the scene less than two minutes after the dispatch observed that defendant and another individual matched the general description of the suspects and were within a block of the location described in the tip.   The officer thus had a founded suspicion that criminal activity was afoot, justifying his initial common-law inquiry of defendant (see People v. Price, 109 AD3d 1189, 1190, lv denied 22 NY3d 1043;  see generally People v. Stewart, 41 N.Y.2d 65, 69).   Defendant's flight upon seeing the officer exit his vehicle provided the officer with the requisite reasonable suspicion of criminal activity to warrant his pursuit of defendant (see Price, 109 AD3d at 1190).   Defendant dropped the gun during the pursuit, which gave rise to probable cause to arrest defendant (see People v. Wilson, 49 AD3d 1224, 1224–1225, lv denied 10 NY3d 966;  People v. Lindsay, 249 A.D.2d 937, 938, lv denied 92 N.Y.2d 900), and “the recovery of the gun discarded during [defendant's] flight was lawful inasmuch as the officer's pursuit ․ of defendant [was] lawful” (People v. Norman, 66 AD3d 1473, 1474, lv denied 13 NY3d 940).

Frances E. Cafarell

Clerk of the Court