JOHNSON, JR., JIMMIE L., PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
338
KA 13-00645
PRESENT: SMITH, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JIMMIE L. JOHNSON, JR., DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Monroe County
(Joanne M. Winslow, J.), rendered January 22, 2013. The judgment
convicted defendant, upon his plea of guilty, of criminal possession
of a weapon in the second degree (two counts) and menacing a police
officer or peace officer (two counts).
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of, inter alia, two counts of criminal
possession of a weapon in the second degree (Penal Law § 265.03 [1]
[b]; [3]). Contrary to defendant’s contention, Supreme Court properly
refused to suppress evidence, including a handgun, seized by a police
officer from defendant’s person. A Rochester police officer testified
that he stopped defendant’s bicycle for a violation of the Vehicle and
Traffic Law, and the court’s determination to credit that testimony
over defendant’s evidence to the contrary “is entitled to great
deference” (People v Frazier, 52 AD3d 1317, 1317, lv denied 11 NY3d
788; see People v Prochilo, 41 NY2d 759, 761). “Great weight must be
accorded to the determination of the suppression court because of its
ability to observe and assess the credibility of the witnesses, and
its findings should not be disturbed unless clearly erroneous or
unsupported by the hearing evidence” (People v Coleman, 306 AD2d 941,
941, lv denied 1 NY3d 596; see People v Mateo, 2 NY3d 383, 414, cert
denied 542 US 946). Here, the People presented evidence establishing
that, as defendant fled the scene, the officer observed him remove an
object from his waistband and move his hands in a way that led the
officer to conclude that defendant was attempting to chamber a round
of ammunition into a semiautomatic handgun, providing the officer with
reasonable suspicion to detain defendant (see People v Curry, 81 AD3d
1315, 1315, lv denied 16 NY3d 858; People v Wilson, 5 AD3d 408, 409,
-2- 338
KA 13-00645
lv denied 2 NY3d 809). Upon observing the weapon in defendant’s hand,
the officer had probable cause to arrest defendant (see People v
Madrid, 52 AD3d 530, 531, lv denied 11 NY3d 790; People v Forbes, 244
AD2d 954, 954, lv denied 91 NY2d 941).
Entered: April 29, 2016 Frances E. Cafarell
Clerk of the Court