OSTEEN, FELTON M., PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1100
KA 15-00432
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
FELTON M. OSTEEN, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (DANIELLE
E. PHILLIPS OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (John L.
Michalski, A.J.), rendered January 7, 2015. 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 the gun should have been suppressed as the “fruit of
an illegal stop without probable cause.” The suppression hearing
testimony demonstrates that the officers were patrolling in the
vicinity of a particular intersection known to them as a high-crime
area when they observed defendant and another man conversing on the
corner adjacent to a vacant lot. The officers observed the men
looking around them constantly, “their heads on [a] swivel,” until the
men noticed the patrol car, at which point defendant “fixated” on it.
One of the officers, who recognized defendant from “assisting on a
couple of his previous arrests,” one for narcotics and another for
weapon possession, but who had forgotten defendant’s name, called out
to defendant from the patrol car, asking defendant to provide his
name. Defendant gave his first name and immediately started walking
toward the patrol car. At that point, the other officer asked the men
what they were doing, and defendant said, “Nothing.” Defendant walked
up to and then past the patrol car until he reached its rear bumper,
when he broke out into a run, away from the patrol car. The second
officer, who had recognized defendant, got out of the patrol car to
see why defendant was running and immediately saw that defendant was
holding a handgun in his right hand. That officer drew his weapon and
called out for defendant to stop, but defendant did not do so. That
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KA 15-00432
officer gave chase and, right before apprehending defendant in the
backyard of a residence, saw defendant throw the handgun over a fence
into an adjoining yard. Police subsequently recovered the loaded
handgun from the driveway of that adjoining property.
We conclude that, in view of their knowledge and observations,
the officers had an “ ‘articulable basis,’ meaning an ‘objective,
credible reason not necessarily indicative of criminality,’ ” to
support their request for information from defendant, including his
name and his purpose for being at that location (People v Valerio, 274
AD2d 950, 951, affd 95 NY2d 924, cert denied 532 US 981, quoting
People v Ocasio, 85 NY2d 982, 985; see generally People v Garcia, 20
NY3d 317, 322; People v De Bour, 40 NY2d 210, 223). We further
conclude that, when defendant fled from them with a weapon visible in
his hand and disregarded their order to stop, the officers acquired
probable cause, justifying their pursuit, stop, forcible detention,
and arrest of defendant (see People v Martinez, 80 NY2d 444, 447-448;
People v Simmons, 133 AD3d 1275, 1276-1277, lv denied 27 NY3d 1006;
see also People v Sierra, 83 NY2d 928, 929-930). Because defendant
abandoned the gun during the chase in response to the lawful conduct
of police, he lacks standing to challenge the seizure of the gun from
the adjoining property (see People v Walters, 140 AD3d 1761, 1762, lv
denied 28 NY3d 938; People v Stevenson, 273 AD2d 826, 827; see
generally People v Ramirez-Portoreal, 88 NY2d 99, 110).
Finally, we reject defendant’s contention that the period of
postrelease supervision imposed is unduly harsh and severe.
Entered: December 23, 2016 Frances E. Cafarell
Clerk of the Court