MCKINLEY, TRAVONTAE, PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1371
KA 09-01307
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
TRAVONTAE MCKINLEY, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (SUSAN C.
AZZARELLI OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Onondaga County Court (Anthony F.
Aloi, J.), rendered June 18, 2009. The judgment convicted defendant,
upon his plea of guilty, of criminal possession of a weapon in the
second degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon a 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 a handgun discarded by
defendant while he was being pursued by a police officer, a controlled
substance seized from his person following his arrest, and a
postarrest showup identification. The officer who pursued defendant
testified at the suppression hearing that the police received a 911
call reporting that shots had been fired near the intersection of East
Fayette Street and Columbus Avenue in Syracuse. The information
transmitted to the police indicated that four black males, at least
one of whom was dressed in dark clothing, were reportedly involved in
the incident. Within a minute and a half of the dispatch, the
pursuing officer and two other police officers in an unmarked vehicle
approached a group of four black males, one of whom was defendant,
walking approximately one block from the scene of the alleged
shooting. The police vehicle pulled up to the four individuals and,
as the officers were exiting the vehicle, defendant and another male
dressed in dark clothing fled in different directions. The officer
who pursued defendant testified that he repeatedly yelled, “stop,
police” while he was pursuing defendant. During the course of the
pursuit, defendant discarded a handgun. The police thereafter
apprehended defendant and, during a search incident to his arrest,
discovered a bag containing cocaine. The witness who placed the 911
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KA 09-01307
call then identified defendant as the shooter in a postarrest showup
identification.
We conclude that, based upon defendant’s physical and temporal
proximity to the scene of the reported incident and the fact that the
group of males matched the description of the individuals involved in
the shooting, the officers had a founded suspicion that criminal
activity was afoot, justifying their initial common-law inquiry of
defendant (see People v De Bour, 40 NY2d 210, 223; People v Brown, 67
AD3d 1439, 1439-1440, lv denied 14 NY3d 798; People v Williams, 39
AD3d 1269, 1270, lv denied 9 NY3d 871). We further conclude that
defendant’s flight as the officers began to exit their vehicle and his
continued flight in defiance of orders to stop furnished the requisite
reasonable suspicion to justify a greater level of police intrusion
(see Williams, 39 AD3d at 1270), i.e., police pursuit (see People v
Pines, 99 NY2d 525, 526-527; People v Sierra, 83 NY2d 928, 929).
Defendant contends that the police lacked reasonable suspicion
justifying pursuit because the record does not establish that
defendant knew that the approaching individuals were police officers,
citing People v Riddick (70 AD3d 1421, 1424, lv denied 14 NY3d 844).
Even assuming, arguendo, that defendant’s contention is preserved for
our review, we conclude that it is without merit. Here, unlike in
Riddick, the police were responding to a reported crime, and the
police therefore had a founded suspicion that criminal activity was
afoot before approaching defendant (see id. at 1422). Thus, under the
circumstances of this case, including the report of shots fired and
the fact that the four individuals matched the description of the
individuals involved in the shooting incident, we conclude that
defendant’s flight from the officers and his refusal to stop after the
officers explicitly identified themselves as police and he was
directed to stop justified the pursuit of defendant (see generally
People v Bachiller, 93 AD3d 1196, 1197, lv dismissed 19 NY3d 861;
Brown, 67 AD3d at 1439-1440; People v Martinez, 59 AD3d 1071, 1072, lv
denied 12 NY3d 856).
Because the record supports the determination of the suppression
court that the police had reasonable suspicion to pursue defendant,
defendant’s abandonment of a handgun during the pursuit was not
precipitated by illegal conduct and, thus, denial of suppression was
proper (see Sierra, 83 NY2d at 930). The search of defendant’s
person, resulting in the seizure of the controlled substance sought to
be suppressed, was incident to defendant’s lawful arrest (see
Williams, 39 AD3d at 1270), as was the postarrest identification of
defendant.
Entered: December 28, 2012 Frances E. Cafarell
Clerk of the Court