PEOPLE v. BROWN

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

The PEOPLE of the State of New York, Respondent, v. Darius BROWN, Defendant-Appellant.

Decided: November 13, 2009

PRESENT:  SCUDDER, P.J., CENTRA, FAHEY, GREEN, AND GORSKI, JJ. Timothy P. Donaher, Public Defender, Rochester (William Clauss of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Respondent.

 On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the third degree (Penal Law § 265.02 [former (4) ] ), defendant contends that Supreme Court erred in refusing to suppress the gun found on his person and his statements to the police on the ground that he was unlawfully detained.   Contrary to defendant's contention, we conclude that the police officer had a founded suspicion that criminal activity was afoot and thus was justified, based on a common-law right of inquiry, in ordering defendant to stop walking away from him (see generally People v. Bora, 83 N.Y.2d 531, 534-536, 611 N.Y.S.2d 796, 634 N.E.2d 168;  People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562).   The People therefore sustained their burden at the suppression hearing “of going forward to show the legality of the police conduct in the first instance” (People v. Di Stefano, 38 N.Y.2d 640, 652, 382 N.Y.S.2d 5, 345 N.E.2d 548).   We further conclude that defendant's flight when approached by the officer, in conjunction with the attendant circumstances, gave rise to the requisite reasonable suspicion justifying police pursuit (see People v. Martinez, 59 A.D.3d 1071, 1072, 873 N.Y.S.2d 807, lv. denied 12 N.Y.3d 856, 881 N.Y.S.2d 667, 909 N.E.2d 590).

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

MEMORANDUM: