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The PEOPLE, etc., Respondent, v. Cory LAWRENCE, Appellant.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Cassandra Mullen, J.), rendered June 29, 2017, convicting him of criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing (Guy J. Mangano, Jr., J.), of the defendant's motion to suppress physical evidence.
ORDERED that the judgment is affirmed.
At a suppression hearing, Police Officer Kevin Morgan testified that on November 9, 2016, he, along with two other officers, were wearing plainclothes and traveling in an unmarked vehicle. After receiving an anonymous tip that, earlier in the evening, a fight had occurred at a funeral home and an individual allegedly had a gun, the officers drove to the funeral home. Upon arriving, the officers observed a group of five or six males, some or all of whom were drinking alcohol on the sidewalk outside of the funeral home. When the officers stopped their vehicle at the entrance of the parking lot to the funeral home, all but one of the males in the group approached the officers and asked if there was anything wrong and if they could help. The officers responded that there was “no problem,” and asked the men to “keep the drinks behind” a fence outside of the funeral home. The defendant, who was initially part of the group, had separated from the group, did not approach the police vehicle, and instead walked away from the officers. The defendant walked to a parked vehicle, and asked another male in the group to open the door to the vehicle. When that male declined to open the door, the defendant continued to walk away from the officers. As a result, the officers slowly drove their vehicle behind the defendant, who was walking on the sidewalk. The officers then stopped their vehicle in the street behind the defendant, and attempted to get the defendant's attention by yelling “yo” and “excuse me, sir” through the open windows of the vehicle. Although the defendant initially did not respond, he eventually looked over his shoulder and responded, “nah.” Officer Morgan testified that he opened the door of the police vehicle, and the defendant “immediately started running.” Officer Morgan further testified that “by the time [he] was able to [ ] exit the vehicle,” he saw the defendant reach into his pocket and throw a “silver metallic object that appeared to be a gun.” Officer Morgan heard a “metal on metal sound,” pursued the defendant on foot, and placed the defendant under arrest. The officers recovered a gun from the area where Officer Morgan saw the defendant throw the object.
Following the hearing, the Supreme Court denied the defendant's motion to suppress the gun. The defendant subsequently pleaded guilty to criminal possession of a weapon in the third degree in full satisfaction of the indictment. The defendant appeals.
We agree with the Supreme Court's determination to deny suppression of the gun. On a motion by a defendant to suppress physical evidence, “the People have the burden of going forward to show the legality of the police conduct in the first instance” (People v. Whitehurst, 25 N.Y.2d 389, 391, 306 N.Y.S.2d 673, 254 N.E.2d 905 [emphasis omitted]; People v. Worrell, 170 A.D.3d 1048, 1050, 96 N.Y.S.3d 269). The defendant bears the ultimate burden of proving that the evidence should not be used against him (see People v. Berrios, 28 N.Y.2d 361, 367, 321 N.Y.S.2d 884, 270 N.E.2d 709; People v. Worrell, 170 A.D.3d at 1050, 96 N.Y.S.3d 269). Further, the credibility determinations of a hearing court following a suppression hearing are entitled to great deference on appeal and will not be disturbed unless clearly unsupported by the record (see People v. Guzman, 175 A.D.3d 564, 564, 104 N.Y.S.3d 912; People v. Watson, 163 A.D.3d 855, 856–857, 81 N.Y.S.3d 449; People v. Casey, 149 A.D.3d 770, 771, 52 N.Y.S.3d 377).
“In People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562 (1976), the Court of Appeals established a graduated four-level test for evaluating the propriety of police encounters when a police officer is acting in a law enforcement capacity. The first level permits a police officer to request information from an individual, and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality. The second level, known as the common-law right of inquiry, requires a founded suspicion that criminal activity is afoot, and permits a somewhat greater intrusion. The third level permits a police officer to forcibly stop and detain an individual. Such a detention, however, is not permitted unless there is a reasonable suspicion that an individual is committing, has committed, or is about to commit a crime. The fourth level authorizes an arrest based on probable cause to believe that a person has committed a crime” (People v. Karagoz, 143 A.D.3d 912, 913–914, 39 N.Y.S.3d 217 [internal quotation marks omitted]; see People v. De Bour, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562).
Here, based on the testimony adduced at the suppression hearing, the officers had an objective, credible reason for approaching the defendant with a request for information when they first observed the defendant walking away from the group of men who had approached the officers (see People v. Hill, 33 N.Y.3d 990, 991–992, 102 N.Y.S.3d 138, 125 N.E.3d 803; People v. Cisse, 149 A.D.3d 435, 53 N.Y.S.3d 614, affd 32 N.Y.3d 1198, 96 N.Y.S.3d 165, 120 N.E.3d 364; People v. Karagoz, 143 A.D.3d at 914, 39 N.Y.S.3d 217; People v. Davis, 78 A.D.3d 724, 725, 910 N.Y.S.2d 142; People v. Mack, 49 A.D.3d 1291, 1292, 853 N.Y.S.2d 764; People v. Montero, 284 A.D.2d 159, 159–160, 726 N.Y.S.2d 102; People v. Braithwaite, 172 A.D.2d 548, 549, 568 N.Y.S.2d 135). “[A]lthough the defendant possessed the constitutional right not to respond to [the officers'] inquiries and to remain silent, and to walk or run away, the officers were not required to merely abort their inquiries upon such a response” (People v. Amuso, 44 A.D.3d 781, 783, 843 N.Y.S.2d 395). “Rather, the officers were entitled to continue observation of the defendant, and to endeavor to conclude their inquiries, provided they did so in an unobtrusive manner that did not limit the defendant's freedom of movement” (People v. Amuso, 44 A.D.3d at 783, 843 N.Y.S.2d 395; see People v. Mack, 89 A.D.3d 864, 865, 932 N.Y.S.2d 163; People v. Cruz, 292 A.D.2d 175, 175, 738 N.Y.S.2d 201). Here, the officers' actions in following behind the defendant in their vehicle as he walked on the sidewalk were unobtrusive and did not serve to limit his freedom of movement. Under the circumstances, the fact that Officer Morgan opened the door to the police vehicle, by itself, did not elevate the encounter beyond a level-one request for information (see People v. Diaz, 80 N.Y.2d 950, 952, 590 N.Y.S.2d 871, 605 N.E.2d 358; People v. Quentin F., 177 A.D.3d 439, 440, 113 N.Y.S.3d 40; People v. Cisse, 149 A.D.3d at 435, 53 N.Y.S.3d 614; People v. Davis, 78 A.D.3d at 725, 910 N.Y.S.2d 142; People v. Foster, 302 A.D.2d 403, 404, 756 N.Y.S.2d 239; People v. Thornton, 238 A.D.2d 33, 36, 667 N.Y.S.2d 705). Once the defendant fled and Officer Morgan observed the defendant discard what appeared to be a gun, the officers were permitted to pursue the defendant (see People v. Whitehead, 162 A.D.3d 1532, 78 N.Y.S.3d 840; People v. Feliciano, 140 A.D.3d 1776, 1777, 32 N.Y.S.3d 435; People v. Baksh, 125 A.D.3d 988, 989, 5 N.Y.S.3d 443; People v. Lopez, 169 A.D.2d 782, 783, 565 N.Y.S.2d 150). Inasmuch as the defendant's abandonment of the gun during the pursuit was not precipitated by illegal police conduct, the defendant had no right to object to the officers' seizure of that evidence (see People v. Mack, 89 A.D.3d at 865, 932 N.Y.S.2d 163).
Accordingly, we agree with the Supreme Court's determination denying the defendant's motion to suppress the gun.
RIVERA, J.P., LEVENTHAL, LASALLE and BRATHWAITE NELSON, JJ., concur.
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Docket No: 2017–08485
Decided: November 18, 2020
Court: Supreme Court, Appellate Division, Second Department, New York.
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