The People of the State of New York, Respondent, v. Rafael Jiminez, Defendant–Appellant.

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Supreme Court, Appellate Division, First Department.

The People of the State of New York, Respondent, v. Rafael Jiminez, Defendant–Appellant.

3079

Decided: February 14, 2017

Tom, J.P., Sweeny, Renwick, Moskowitz, Kapnick, JJ. Seymour W. James, Jr., The Legal Aid Society, New York (Ellen Dille of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Vincent Rivellese of counsel), for respondent.

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Judgment, Supreme Court, New York County (Bonnie G. Wittner, J. at hearing;  Daniel P. FitzGerald, J. at jury trial and sentencing), rendered May 3, 2013, convicting defendant of three counts of criminal possession of stolen property in the fourth degree, and sentencing him, as a second felony offender, to concurrent terms of two to four years, unanimously affirmed.

The court properly denied defendant's suppression motion.  When defendant abandoned stolen credit and debit cards by discarding them on the street as a police officer approached him, the abandonment was not “precipitated by unlawful police activity” (People v. Ramirez–Portoreal, 88 N.Y.2d 99, 110 [1996] ).  Regardless of the officer's subjective intent, at the time defendant abandoned the cards, the police had not yet interfered with him in any way.  The plainclothes officer's actions, up to that point, were limited to crossing in front of defendant on the sidewalk from about 10 feet away and displaying his shield, without saying a word.  In any event, based on defendant's suspicious, unsuccessful efforts to use various cards to obtain money from a cash machine, the police had, at the least, a founded suspicion of criminality that entitled them to make a common-law inquiry (see People v. Francois, 61 AD3d 524 [1st Dept 2009], affd 14 NY3d 732 [2010] ), and their conduct cannot be viewed as exceeding that authority (see People v. Bora, 83 N.Y.2d 531, 532–535 [1994] ).

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CLERK