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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Omar ISIDRO, also known as Isidro Roches, also known as Isidro Rochez, Defendant-Appellant.

Decided: April 30, 2004

PRESENT:  PIGOTT, JR., P.J., GREEN, PINE, WISNER, AND LAWTON, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Eric Tennen of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Donna A. Milling of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, robbery in the first degree (two counts) (Penal Law § 160.15 [2], [4] ) and false personation (§ 190.23).   Contrary to the contention of defendant, Supreme Court properly denied his suppression motion (see People v. Hill, 302 A.D.2d 958, 755 N.Y.S.2d 169, lv. denied 100 N.Y.2d 539, 763 N.Y.S.2d 4, 793 N.E.2d 418).   The testimony at the suppression hearing establishes that defendant engaged in furtive behavior while standing in the snow at the end of the trail of footsteps that the police had been following from the crime scene and along which the weapon used in the robbery had been found.   That behavior gave the police “a founded suspicion that criminal activity [was] afoot” (People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562), thus justifying in the first instance a detention short of a forcible seizure to obtain explanatory information from defendant (see Hill, 302 A.D.2d at 959, 755 N.Y.S.2d 169).   Upon confirming that defendant had falsely identified himself to them, the police had not only probable cause to support an arrest for false personation but also reasonable suspicion to believe that defendant was involved in the robbery, thus justifying his continued forcible detention (see id.).   The probable cause supporting the arrest for false personation was not diminished by the fact that the robbery victims were unable to identify defendant at the ensuing showup, and thus the police were justified in transporting defendant to the police station for booking on that charge.   Defendant discarded a gun magazine from his pocket as he was being escorted to booking and thereby engaged in an independent act that involved a calculated risk “in no way prompted by any unlawful police conduct” (People v. Jones, 238 A.D.2d 153, 153, 656 N.Y.S.2d 202, lv. denied 90 N.Y.2d 906, 663 N.Y.S.2d 518, 686 N.E.2d 230;  see People v. Boodle, 47 N.Y.2d 398, 402, 418 N.Y.S.2d 352, 391 N.E.2d 1329, cert. denied 444 U.S. 969, 100 S.Ct. 461, 62 L.Ed.2d 383).   Upon recovering the gun magazine, the police had probable cause to arrest defendant for the robbery, thus justifying their seizure of his jacket and the money in the jacket pocket.

 We reject defendant's further contention that the verdict is against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672;  People v. Goree, 309 A.D.2d 1204, 764 N.Y.S.2d 760;  People v. Bateman, 241 A.D.2d 770, 771-772, 661 N.Y.S.2d 72, lv. denied 91 N.Y.2d 869, 668 N.Y.S.2d 567, 691 N.E.2d 639).   Defendant's additional contention that Penal Law § 190.23 is unconstitutional is raised for the first time on appeal and thus is not preserved for our review (see People v. Iannelli, 69 N.Y.2d 684, 512 N.Y.S.2d 16, 504 N.E.2d 383, cert. denied 482 U.S. 914, 107 S.Ct. 3185, 96 L.Ed.2d 673;  People v. Poole, 171 A.D.2d 1041, 579 N.Y.S.2d 614, lv. denied 78 N.Y.2d 972, 574 N.Y.S.2d 952, 580 N.E.2d 424;  cf. Matter of Travis S., 96 N.Y.2d 818, 728 N.Y.S.2d 411, 752 N.E.2d 848). The sentence is not unduly harsh or severe.

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