People v. Youngerman

—Appeal by the People from an order of the Supreme Court, Queens County (Rosenzweig, J.), dated June 11, 1993, which granted those branches of the defendant’s omnibus motion which were to suppress physical evidence and his statements to law enforcement officials.

Ordered that the order is reversed, on the law, those branches of the defendant’s omnibus motion which were to suppress physical evidence and his statements to law enforcement officials are denied, and the matter is remitted to the Supreme Court, Queens County, for further proceedings in accordance herewith.

On December 19, 1992, at approximately 5:20 A.M., New York City Police Officer Garry McKenna responded to a barbershop which had been burglarized. According to the employee reporting the burglary, it had occurred sometime before his 5:00 a.m. arrival at the premises. The employee reported that a black bag with brown handles, in which there were various grooming devices, was missing.

After completing his report at approximately 5:45 a.m., Officer McKenna and his partner were instructed by the radio dispatcher to respond to another, unrelated crime scene. On their way there, two blocks from the barbershop, Officer McKenna observed the defendant standing between two parked cars. There were not a lot of other people in the area —it was somewhat secluded. As the defendant observed the patrol car, he made a U-turn and began walking away from the car. The defendant stepped between two parked cars and then stepped back on the sidewalk and continued walking.

Officer McKenna, noticing that the defendant was carrying a large black bag, stopped his patrol car and watched the defendant through his rear view mirror. He saw the defendant look back at the patrol car, make another U-turn and walk down a street out of Officer McKenna’s sight. Officer McKenna turned his patrol car around and followed the defendant, who was clutching the bag under his right arm, close to his body. As the defendant walked, he looked around, back, and forth.

Officer McKenna pulled his patrol car up next to the defendant. As he did so, the defendant dropped the bag to the ground. Officer McKenna exited the patrol car and asked the defendant what he was doing with the bag. The defendant responded that he was a barber. Officer McKenna asked if he could look in the defendant’s bag and the defendant opened the bag and said, "I found this”. Officer McKenna, observing that the bag contained barbershop items, told the defendant that there had been a barbershop burglary and that the items in the defendant’s bag fit the description of property taken from the shop. He asked if the defendant would accompany him to the barbershop, and the defendant agreed. The barbershop employee identified the property in the defendant’s bag and the defendant was then arrested.

We find that under the circumstances of this case, Officer McKenna’s observation of the defendant a mere two blocks from the burglarized premises, in an otherwise secluded area, in possession of a bag similar to the one reported stolen, coupled with the defendant’s evasive behavior, both in trying to avoid the police and in immediately dropping the bag upon the officer’s approach, gave the officer a founded suspicion that criminal activity was afoot (see, People v Hollman, 79 NY2d 181). Accordingly, the officer was justified in asking the defendant about the bag. The defendant’s inappropriate and suspicious response, that he was a barber, provided the officer with a proper legal basis upon which the officer could request to-see the contents of the bag (see, People v Hollman, supra; see, e.g., People v Veryzer, 139 AD2d 609, 610). Accordingly, the hearing court erred in suppressing the physical evidence and the defendant’s statements. Rosenblatt, J. P., Ritter and Altman, JJ., concur.