People v. Morris , 29 N.Y.S.3d 653 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 14, 2016 105744
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
BRADY D. MORRIS,
Appellant.
________________________________
Calendar Date: February 19, 2016
Before: Peters, P.J., Garry, Rose, Lynch and Clark, JJ.
__________
Allen E. Stone Jr., Vestal, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Jordan J.
Yorke of counsel), for respondent.
__________
Clark, J.
Appeal from a judgment of the County Court of Chemung
County (Hayden, J.), rendered December 17, 2012, convicting
defendant upon his plea of guilty of the crime of attempted
criminal possession of a weapon in the second degree.
At roughly 9:40 p.m. on June 24, 2012, a police officer
observed defendant riding a bicycle on the sidewalk in the City
of Elmira, Chemung County in violation of a city ordinance. The
officer activated his vehicle's lights and repeatedly directed
defendant to stop. Despite the officer's commands, defendant
continued to ride the bicycle on the sidewalk while shouting
obscenities at the officer and stating that the officer had no
reason to stop him. The officer drove alongside defendant and
ultimately pulled his vehicle into a parking lot in defendant's
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path, causing defendant to fall off of the bicycle. At some
point as the officer exited his vehicle and approached defendant,
defendant stood up, attempted to flee and informed the officer
that he had a weapon. During this chaotic exchange, the officer
subdued defendant, asked him where the weapon was located,
directed him not to move and retrieved the weapon from
defendant's waistband. Upon being questioned as to whether he
had anything further on his person, defendant directed the
officer to his coat pocket where he had a substance that was
later identified as cocaine. Defendant was ultimately indicted
for criminal possession of a weapon in the second degree and
criminal possession of a controlled substance in the seventh
degree.
Defendant subsequently moved to suppress the physical
evidence recovered from his person as the product of an illegal
search and seizure. Following a Mapp hearing, at which defendant
presented no evidence, County Court denied the motion. Defendant
later pleaded guilty to attempted criminal possession of a weapon
in the second degree, and County Court sentenced defendant, in
accordance with the plea agreement, to a prison term of two
years, followed by two years of postrelease supervision.
Defendant appeals, solely contesting County Court's denial of his
suppression motion, a challenge which survives his guilty plea
(see CPL 710.70 [2]).
We affirm. A police officer may forcibly stop and detain
an individual without a warrant if the officer has "a reasonable
suspicion that the particular individual was involved in a felony
or misdemeanor" (People v Moore, 6 NY3d 496, 499 [2006]; see
People v Roque, 99 NY2d 50, 54 [2002]; People v De Bour, 40 NY2d
210, 223 [1976]). Similarly, police pursuit is justified if the
officer has a "reasonable suspicion that a crime has been, is
being, or is about to be committed" (People v Holmes, 81 NY2d
1056, 1058 [1993]; see People v Woods, 98 NY2d 627, 628 [2002];
People v Morris, 105 AD3d 1075, 1077-1078 [2013], lv denied 22
NY3d 1042 [2013]). Reasonable suspicion is "the quantum of
knowledge sufficient to induce an ordinarily prudent and cautious
[person] under the circumstances to believe [that] criminal
activity is at hand" (People v Cantor, 36 NY2d 106, 112-113
[1975]; accord People v Brannon, 16 NY3d 596, 601-602 [2011]).
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Once a lawful stop has been effectuated, a police officer may
conduct a protective frisk if he or she reasonably suspects that
the suspect is armed and poses a threat to his or her safety (see
People v Batista, 88 NY2d 650, 653-654 [1996]; People v De Bour,
40 NY2d at 223; People v Morrow, 97 AD3d 991, 992 [2012]).
Here, the police officer's undisputed testimony established
that he witnessed defendant riding a bicycle on the sidewalk in
violation of a city ordinance.1 Having witnessed the violation,
the officer had a reasonable suspicion that defendant may have
engaged in criminal activity and was, therefore, justified in
directing him to stop for the purpose of conducting a limited
investigation and determining the appropriate penalty and, by the
same token, pursuing him once he fled (see People v Sierra, 83
NY2d 928, 930 [1994]; People v Basono, 122 AD3d 553, 553 [2014],
lv denied 25 NY3d 1069 [2015]; People v Simms, 25 AD3d 425, 425
[2006], lv denied 6 NY3d 838 [2006]).
As further established by the police officer's
uncontradicted testimony, the ensuing pursuit culminated in
defendant's forcible detention, an encounter that rapidly
escalated as defendant ignored the officer's repeated commands to
stop, continued his efforts to flee and announced that he had a
gun. As these circumstances unfolded, the police officer quickly
developed a reasonable suspicion that defendant was armed and
justifiably conducted the search of defendant's waistband that
resulted in the discovery of the firearm (see People v Williams,
25 AD3d 927, 929 [2006], lv denied 6 NY3d 840 [2006]; People v
Winchester, 14 AD3d 939, 940-941 [2005], lv denied 5 NY3d 796
[2005]). The officer's subsequent search of defendant's coat
pocket was also justified, given that the discovery of the
firearm gave rise to probable cause for an arrest and that
defendant answered in the affirmative when asked if he had
1
The city ordinance at issue here provides that an
individual's first two violations within a one-year period are
"deemed a violation of law" punishable by a fine, while "each
consecutive violation thereafter within the same one-year period"
is deemed a misdemeanor punishable by a fine and/or a period of
incarceration (Elmira City Code § 20-3 [b] [2] [c]).
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anything else on his person and directed the police officer to
the location of the illicit substance (see People v Winchester,
14 AD3d at 941). As a final matter, we note that the manner and
duration of the seizure, which lasted a matter of minutes and
ended in a formal arrest, did not exceed the scope of a
permissible investigatory stop (see People v Allen, 73 NY2d 378,
379-380 [1989]; People v Williams, 305 AD2d 804, 806-807 [2003]).
In view of the foregoing, County Court did not err in denying
defendant's motion to suppress.
Peters, P.J., Garry, Rose and Lynch, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court