PEOPLE v. HARVEY (2018)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of assault in the second degree (Penal Law § 120.05[4] ) and criminal possession of a weapon in the second degree (§ 265.03[3] ).  This case arose from an incident in which defendant entered a crowded restaurant in the early morning while carrying a loaded revolver in his waistband.  During an encounter with a police officer, the revolver discharged and a customer was shot.

Defendant contends that County Court erred in refusing to suppress physical evidence, i.e. the revolver, because the officer lacked probable cause to effect an arrest.  We reject that contention.  The record establishes that the officer had an articulable reason for initially approaching defendant “to conduct a common-law inquiry, i.e., [he] had ‘a founded suspicion that criminal activity [was] afoot’ ” (People v. Mack, 49 A.D.3d 1291, 1292, 853 N.Y.S.2d 764 [4th Dept. 2008], lv denied 10 N.Y.3d 866, 860 N.Y.S.2d 492, 890 N.E.2d 255 [2008], quoting People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ).  More particularly, a security guard from a nearby bar told the officer that defendant brushed up against him and, when defendant did so, the guard felt a hard object in defendant's waistband, which he knew to be a gun.  After the guard identified defendant in the restaurant, the officer observed a bulge in defendant's waistband that looked like a gun inasmuch as it was hard, stuck upwards, and was inconsistent with an object other than a gun.  Given defendant's subsequent furtive movements after making eye contact with the officer, and the fact that the incident occurred in a crowded restaurant, the officer was justified in asking him to step outside “to request clarification as to the source of the waistband bulge” (De Bour, 40 N.Y.2d at 221, 386 N.Y.S.2d 375, 352 N.E.2d 562).  Defendant's subsequent act of leaning back and reaching for his waistband “provided the officer[ ] with reasonable suspicion to believe that defendant posed a threat to [his] safety” (Mack, 49 A.D.3d at 1292, 853 N.Y.S.2d 764;  see People v. Benjamin, 51 N.Y.2d 267, 271, 434 N.Y.S.2d 144, 414 N.E.2d 645 [1980] ).  The officer was thus justified in grabbing defendant's right arm in order to prevent him from drawing what turned out to be a revolver (see Mack, 49 A.D.3d at 1292, 853 N.Y.S.2d 764).  In the ensuing struggle, the revolver discharged, providing probable cause to effect an arrest (see generally People v. Daniels, 147 A.D.3d 1392, 1393, 46 N.Y.S.3d 358 [4th Dept. 2017], lv denied 29 N.Y.3d 1077, 64 N.Y.S.3d 167, 86 N.E.3d 254 [2017] ).

Viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence with respect to assault in the second degree (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).  Finally, the sentence is not unduly harsh or severe.