Appeal by the People from an order of the Supreme Court, Kings County (J. Goldberg, J.), dated March 30, 2009, which, after a hearing, granted that branch of the defendant's omnibus motion which was to suppress physical evidence.
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.
WILLIAM F. MASTRO, J.P., DANIEL D. ANGIOLILLO, RUTH C. BALKIN and SANDRA L. SGROI, JJ.
ORDERED that the order is affirmed.
The defendant was observed by a police officer while walking down a street at night and holding his waistband, in what the police described as a high-crime area. According to that police officer, the defendant appeared to be "overly alerted" to his surroundings or "afraid of something." The officer and two other officers, all in plainclothes, were driving in an unmarked car. The officer testified that the defendant saw the car and then ran away from it. The officers pursued him, and he discarded a gun during the pursuit.
Under the circumstances of this case, the officers' pursuit of the defendant was unlawful, and the defendant's discarding of the weapon during the pursuit was precipitated by the illegality and was not attenuated from it (see People v Lopez, 67 AD3d 708; cf. People v Boodle, 47 NY2d 398, cert denied 444 US 969). Accordingly, the Supreme Court properly granted that branch of the defendant's omnibus motion which was to suppress the weapon.
MASTRO, J.P., ANGIOLILLO, BALKIN and SGROI, JJ., concur.
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