HOLMES, TERRY L., PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
633
KA 08-02353
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
TERRY L. HOLMES, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (John R.
Schwartz, A.J.), rendered August 11, 2008. 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.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury
verdict of criminal possession of a weapon in the second degree (Penal
Law § 265.03 [3]) and criminal possession of a weapon in the third
degree (§ 265.02 [1]), defendant contends that County Court erred in
refusing to suppress the gun that he discarded while fleeing from the
police. We reject that contention. It is well settled that “a
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 Sierra, 83 NY2d
928, 929; see People v Gray, 77 AD3d 1308, 1308). Here, the police
received a 911 call reporting that three black males were engaged in
suspicious activity, i.e., they had emerged from behind the house of
the caller’s sister and entered a blue vehicle. The responding
officer, who arrived at the scene within a few minutes of the call,
observed defendant driving away in the vehicle described in the 911
call with two other black males. When the officer turned to follow
defendant’s vehicle in his marked police car, the vehicle abruptly
swerved out of the driving lane and toward the curb. The passenger
front door opened, the vehicle struck the curb and the two passengers
jumped out of the vehicle as it rolled along the curb. At that point,
the officer pulled behind the vehicle and activated his lights,
whereupon defendant jumped out of the vehicle as it rolled and the
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KA 08-02353
officer pursued defendant on foot. Contrary to defendant’s
contention, we conclude that the information provided by the 911
caller, together with defendant’s conduct in driving the vehicle into
a curb, abandoning the moving vehicle and fleeing on foot in response
to observing the marked police car, provided the officer with the
requisite reasonable suspicion to pursue defendant (see People v
Martinez, 59 AD3d 1071, 1072, lv denied 12 NY3d 856; People v Johnson,
19 AD3d 1163, 1164, lv denied 5 NY3d 829).
Contrary to defendant’s further contention, the sentence is not
unduly harsh or severe, particularly in light of his criminal history
and the nature of the offense.
Entered: June 8, 2012 Frances E. Cafarell
Clerk of the Court