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People v. Agramonte

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 18, 2008

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DAVID AGRAMONTE, DEFENDANT-APPELLANT.

Judgment, Supreme Court, New York County (Rena K. Uviller, J. at suppression hearing; Michael J. Obus, J. at plea and sentence), rendered October 26, 2006, convicting defendant of attempted criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a term of 4 years, unanimously affirmed.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Lippman, P.J., Tom, Buckley, Moskowitz, Renwick, JJ.

1660/06

The court properly denied defendant's suppression motion. An officer saw defendant holding his hand over the front of his waist, partially obscuring what appeared to the barrel of a derringer protruding from his waistband. Although this object ultimately turned out to be a distinctively shaped belt buckle, the hearing court examined the buckle and made a determination that, from the officer's vantage point at the time of the incident, the buckle would have reasonably appeared to be a firearm. We find no reason to disturb that factual determination (see People v Prochilo, 41 NY2d 759, 761 [1977]). Moreover, the officer simply made a common-law inquiry, but defendant ignored the officer's attempts to engage him and, prior to any police action constituting a seizure, he "actively fled from the police" (People v Moore, 6 NY3d 496, 500-501 [2006]), which heightened the level of suspicion (see People v Sierra, 83 NY2d 928, 930 [1994]). Accordingly, defendant's abandonment of contraband during his flight from pursuit was not precipitated by any unlawful police conduct.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081218

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