TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A.
HOBBS OF COUNSEL), FOR DEFENDANT-APPELLANT.
DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KELLY CHRISTINE
WOLFORD OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, NEMOYER, CURRAN, AND
from a judgment of the Supreme Court, Monroe County (Alex R.
Renzi, J.), rendered June 25, 2014. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of
a weapon in the second degree and assault in the second
hereby ORDERED that the judgment so appealed from is
On appeal from a judgment convicting him upon a plea of
guilty of criminal possession of a weapon in the second
degree (Penal Law § 265.03 ) and assault in the
second degree (§ 120.05 ), defendant contends that
Supreme Court erred in refusing to suppress evidence
resulting from an unlawful pursuit. We reject that
patrolling in a high-crime area known for gang activity,
drugs and weapons, officers effectuated a traffic stop of a
vehicle in which defendant was a passenger. Defendant
immediately exited the vehicle, positioning his body so that
his back was to the officers and they could not observe his
right hand. When directed to return to the vehicle, defendant
refused and, instead, turned to face the police officers. At
that moment, the officers observed that defendant had his
right hand at his waistband. The officers "recognized
that as a possible threat" because their training and
experiences had taught them that individuals "keep their
weapons tucked inside their waistband right where [defendant]
was reaching." Notably, there was no innocuous
explanation for such hand positioning because defendant's
pants were not "sagging or being anywhere other than at
his waist." One of the officers drew his weapon, at
which point defendant immediately fled. During the ensuing
chase, the officers saw defendant drop a "dark heavy
object" that was later recovered and identified as a
to defendant's contention, the officers' conduct
"was justified in its inception and at every subsequent
stage of the encounter" (People v Nicodemus,
247 A.D.2d 833, 835, lv denied 92 N.Y.2d 858).
"[I]t is well settled that the police may pursue a
fleeing defendant if they have a reasonable suspicion that
defendant has committed or is about to commit a crime...
While flight alone is insufficient to justify pursuit,
defendant's flight in response to an approach by the
police, combined with other specific circumstances
indicating that the suspect may be engaged in criminal
activity, may give rise to reasonable suspicion, the
necessary predicate for police pursuit" (People v
Rainey, 110 A.D.3d 1464, 1465 [internal quotation marks
omitted]; see People v Sierra, 83 N.Y.2d 928, 929).
"In determining whether a pursuit was justified by
reasonable suspicion, the emphasis should not be narrowly
focused on... any... single factor, but [rather should be
based] on an evaluation of the totality of circumstances,
which takes into account the realities of everyday life
unfolding before a trained officer" (People v
Bachiller, 93 A.D.3d 1196, 1197, lv dismissed
19 N.Y.3d 861');">19 N.Y.3d 861 [internal quotation marks omitted]).
we conclude that defendant's positioning and his refusal
to comply with the officer's request to return to the
vehicle, while not alone indicative of criminal behavior,
could be "considered in conjunction with other attendant
circumstances" to establish the requisite reasonable
suspicion of criminal activity (People v Martinez,
80 N.Y.2d 444, 448). In our view, once defendant refused the
officer's request to return to the vehicle and turned
toward the officers, the officers could "reasonably
suspect that defendant was armed and posed a threat to
their safety because his actions were directed to the area of
his waistband, which was concealed from their view"
(People v Fagan, 98 A.D.3d 1270, 1271, lv
denied 20 N.Y.3d 1061, cert denied ___ U.S.
___, 134 S.Ct. 262). The officer who drew his weapon was
justified in doing so out of a concern for his own safety
(see People v James, 272 A.D.2d 75, 75, lv
denied 95 N.Y.2d 866, reconsideration denied 95
N.Y.2d 965; People v Wright, 100 A.D.2d 523, 525;
see generally People v Benjamin, 51 N.Y.2d 267,
271). We thus conclude that defendant's flight, "in
conjunction with the attendant circumstances, gave rise to
the requisite reasonable suspicion justifying police
pursuit" (People v Brown, 67 A.D.3d 1439, 1440,
lv denied 14 N.Y.3d 798; see Bachiller, 93
A.D.3d at 1197-1198; cf. People v Robbins, 83 N.Y.2d
as "the pursuit of the defendant was justified, the gun
he discarded during the pursuit was not subject to
suppression as the product of unlawful police conduct"
(People v Williams, 120 A.D.3d 1441, 1442, lv
dismissed24 N.Y.3d 1089; see People v Gayden,
126 A.D.3d 1518, 1518-1519, affd28 N.Y.3d 1035;
People v Feliciano, 140 A.D.3d 1776, 1777, lv
denied28 N.Y.3d 1027). Moreover, for the same reason,
defendant's statements to the police are "not
subject to suppression as fruit of the poisonous ...