DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARK DAVISON OF
COUNSEL), FOR DEFENDANT-APPELLANT.
DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND CURRAN,
from a judgment of the Monroe County Court (Vincent M.
Dinolfo, J.), rendered December 8, 2011. The judgment
convicted defendant, upon a jury verdict, of criminal
possession of a weapon in the second degree and criminal
possession of a weapon in the third degree.
hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the sentence
imposed on count three of the indictment and imposing an
indeterminate sentence of imprisonment of 3½ to 7
years on that count, to run concurrently with the sentence
imposed on count two, and as modified the judgment is
Defendant appeals from a judgment convicting him upon a jury
verdict of criminal possession of a weapon in the second
degree (Penal Law § 265.03 ) and criminal possession
of a weapon in the third degree (§ 265.02 ). We
reject defendant's contention that County Court erred in
refusing to suppress the weapon he discarded while he was
being pursued by the police. As we stated in his
codefendant's appeal, "[a]ccording to the evidence
at the [joint] suppression hearing, there was a radio
dispatch concerning an anonymous tip that two individuals
were carrying handguns in a certain location, " and a
police officer who arrived at the scene less than two minutes
after the dispatch observed that defendant and another
individual "matched the general description of the
suspects and were within a block of the location described in
the tip" (People v Gayden, 126 A.D.3d 1518,
1518 [4th Dept 2015], affd 28 N.Y.3d 1035');">28 N.Y.3d 1035 ).
"The officer thus had a founded suspicion that criminal
activity was afoot, justifying his initial common-law
inquiry" of defendant, and defendant's flight
"provided the officer with the requisite reasonable
suspicion of criminal activity to warrant his pursuit"
of defendant (id.). Thereafter, the officer observed
defendant hide an object in a pile of leaves. After hiding
the object, defendant continued to flee and the officer
continued to pursue him. After defendant's arrest, the
officer returned to the pile of leaves and recovered a gun.
In our view, "the recovery of the gun discarded during
[defendant's] flight was lawful inasmuch as the
officer's pursuit... of defendant [was] lawful"
(People v Norman, 66 A.D.3d 1473, 1474 [4th Dept
2009], lv denied 13 N.Y.3d 940');">13 N.Y.3d 940 ; see
Gayden, 126 A.D.3d at 1519).
further contends that the court erred in refusing to suppress
statements he made at the police station. As defendant
correctly concedes, however, those statements were not used
at trial, and we therefore conclude that any error in
refusing to suppress the statements is harmless (see People v
Crimmins, 36 N.Y.2d 230, 237 ).
to defendant's contention, the court properly admitted in
evidence a recording of the 911 call under the present sense
impression exception to the hearsay rule inasmuch as the
People "adduc[ed] evidence sufficiently corroborative of
the substance and content' of the [call]"
(People v Ruttlen, 289 A.D.2d 1061, 1061 [4th Dept
2001], lv denied 98 N.Y.2d 713');">98 N.Y.2d 713 ).
as the People correctly concede, defendant's sentence for
criminal possession of a weapon in the third degree, i.e., a
determinate term of imprisonment of 3½ years with a
five-year period of postrelease supervision, is illegal.
Defendant should have been sentenced as a second felony
offender to an indeterminate sentence of imprisonment with a
minimum term between 2 to 4 years and a maximum term between
3½ to 7 years, with no postrelease supervision
(see Penal Law § 70.06 ,  [d];  [b]).
In the interest of judicial economy, we exercise our inherent
authority to correct the illegal sentence (see People v
Daniels, 125 A.D.3d 1432, 1433 [4th Dept 2015], lv
denied25 N.Y.3d 1071');">25 N.Y.3d 1071 , reconsideration
denied26 N.Y.3d 928');">26 N.Y.3d 928 ). We therefore modify the
judgment by vacating the sentence imposed on count three of
the indictment and imposing an indeterminate sentence of