PEOPLE v. JOSEPH

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Helga JOSEPH, Defendant-Appellant.

Decided: March 27, 2007

ANDRIAS, J.P., SAXE, BUCKLEY, GONZALEZ, McGUIRE, JJ. Steven Banks, The Legal Aid Society, New York (John Schoeffel of counsel), and Davis Polk & Wardwell, New York (Jane H. Yoon of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Matthew Jackson of counsel), for respondent.

Judgment, Supreme Court, New York County (Robert H. Straus, J.), rendered March 21, 2005, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of 1 1/212 to 3 years, unanimously affirmed.

The court properly denied defendant's suppression motion.   It is undisputed that, based on an anonymous 911 call reporting that a “slim Black male, with dreadlocks, in a white tee shirt” who possessed drugs was coming in and out of a building at 73 West 118th Street from which shots had been heard, the police officers, who responded to a radio run within minutes, had a “founded suspicion” that criminality was afoot when they observed defendant, who was the only person there at the time they arrived and who fit the radioed description, coming out of the specified building.   While conceding that the officers had a sufficient basis for a common-law inquiry, defendant argues that the subsequent police conduct constituted a seizure, which was impermissible without “reasonable suspicion” of criminality.   However, the record supports the court's finding that the two police officers who initially responded did not exceed the proper bounds of a common-law inquiry, when one of them, with his hand on his holster, approached defendant in the middle of the street and, while five feet away, told defendant, “[L]et me see your hands,” and asked him if he had anything on him that he should know about.   Defendant responded “no, officer, no,” whereupon the officer asked, “[D]o you have any weapon on you, a gun?”   None of these actions interfered with defendant's freedom of movement, and the encounter did not become a seizure until after defendant responded by lifting his tee shirt above his waist and saying, “[N]o. You can check me,” in the process revealing a folded knife, subsequently determined to be an illegal gravity knife, clipped to his belt.