SALTER, STYLES C., PEOPLE v ( 2013 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1100
KA 12-00571
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
STYLES C. SALTER, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF
COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID PANEPINTO OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered February 28, 2012. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree.
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 criminal possession of a weapon in the
second degree (Penal Law § 265.03 [3]). We reject defendant’s
contention that County Court erred in refusing to suppress a gun
seized by the police from defendant and statements made by defendant
to the police as the result of an allegedly illegal stop and frisk.
Two anonymous 911 calls reported a homicide and gave a description of
two suspects, one of whom was an African-American male in his twenties
wearing dark clothing and a red top. In addition, a police radio
dispatch described one of the suspects as an African-American male
last seen in the vicinity of the area in which defendant was stopped,
wearing a black leather jacket, black jeans and “something red on the
top area.” A police officer testified that he observed defendant, an
African-American male in a black leather jacket, black pants and a red
shirt, near the location where the suspect had last been seen. The
officer further testified that defendant was standing at an angle with
his left side away from the officer and that defendant’s arm was
clenched at his left side. Defendant was not responsive when the
officer asked him what was wrong with his arm, and the officer then
conducted a pat down of defendant and recovered a gun. Contrary to
defendant’s contention, we conclude that the officer had the requisite
reasonable suspicion to stop and detain defendant under level three of
People v De Bour (40 NY2d 210, 223; see People v Thompson, 107 AD3d
1609, 1610; People v Powell, 101 AD3d 1783, 1785, lv denied 20 NY3d
-2- 1100
KA 12-00571
1102; see generally People v Moore, 6 NY3d 496, 498-499). Defendant
matched the description of the suspect in the 911 calls and the police
radio dispatch, and the officer observed defendant acting in a
suspicious manner (see Moore, 6 NY3d at 500-501; see also People v
Zeigler, 61 AD3d 1398, 1399, lv denied 13 NY3d 864).
Finally, we conclude that defendant’s sentence is not unduly
harsh or severe.
Entered: November 8, 2013 Frances E. Cafarell
Clerk of the Court