THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. DEVIN GLOVER DEFENDANT APPELLANT

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. DEVIN J. GLOVER, DEFENDANT–APPELLANT.

KA 08–01205

Decided: September 30, 2011

PRESENT:  CENTRA, J.P., FAHEY, SCONIERS, GREEN, AND MARTOCHE, JJ. TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF COUNSEL), FOR DEFENDANT–APPELLANT. MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O'BRIEN OF COUNSEL), FOR RESPONDENT.

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 his plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ).   Contrary to defendant's contention, County Court properly refused to suppress both the handgun seized by the police from defendant's person and defendant's subsequent statements to the police.   The record establishes that the officers were entitled to approach defendant to conduct a common-law inquiry because they had “a founded suspicion that criminal activity [was] afoot” (People v. De Bour, 40 N.Y.2d 210, 223).   According to the testimony of two police officers at the suppression hearing, they were traveling in a marked police vehicle when they observed defendant turn and whistle toward a group of males standing in an area known for drug sales, at which time the group immediately dispersed from the area (see generally People v. Williams, 39 AD3d 1269, 1270, lv denied 9 NY3d 871;  People v. Rivera, 175 A.D.2d 78, 79–80, lv denied 78 N.Y.2d 1129).   The officers also testified that, upon exiting their vehicle and approaching defendant, he “refus[ed] to remove his hand from his pocket despite the repeated demands of ․ the officers that he do so” (People v. Mack, 49 AD3d 1291, 1292, lv denied 10 NY3d 866).   Defendant's conduct, along with the fact that a shooting had recently occurred in the area of the encounter, “provided the officers with reasonable suspicion to believe that defendant posed a threat to their safety” (id.;   see People v. Robinson, 278 A.D.2d 808, lv denied 96 N.Y.2d 787;  see generally People v. Hensen, 21 AD3d 172, 176, lv denied 5 NY3d 828).   Thus, the frisk conducted by one of the officers at that time, as a result of which the officer discovered a loaded handgun in defendant's coat pocket, “was a ‘constitutionally justified intrusion designed to protect the safety of the officers' ․, and [we conclude] that the court properly refused to suppress the evidence seized as a result thereof, as well as defendant's ensuing statements” (Mack, 49 AD3d at 1292).

Patricia L. Morgan

Clerk of the Court