Opinion
October 13, 1992
Appeal from the Supreme Court, New York County, Rena K. Uviller, J.
While it is true that a citizen need not cooperate with police officers, and may walk or run away when questioned (People v Howard, 50 N.Y.2d 583, cert denied 449 U.S. 1023), People v Leung ( 68 N.Y.2d 734, 736) established that a police pursuit may be justified where the police approach a citizen based on a founded suspicion that criminal activity is afoot, and that person takes flight immediately upon their approach. As this Court explained in People v Allen ( 141 A.D.2d 405, 407, affd 73 N.Y.2d 378) and People v Hill ( 127 A.D.2d 144, appeal dismissed 70 N.Y.2d 795), flight before inquiry by police officers may not be equated with an exercise of the right not to respond such as was involved in People v Howard (supra). A defendant's flight may accordingly be considered an "escalating factor" authorizing a greater level of police intrusion (People v Grant, 184 A.D.2d 242).
When the officers first observed defendant and his companion, they were running while looking back over their shoulders. This activity, coupled with the officers' observation of an object in defendant's companion's hand that appeared to be a gun, provided a founded suspicion that criminal activity was afoot justifying the approach of both men. The immediate change of direction by the suspects upon seeing the officers, combined with their headlong rush, their furtive glances, and the sighting of an object that appeared to be a gun, provided ample indicia of criminal activity sufficient to justify pursuit. The propriety of the pursuit was buttressed by the radio report, received as the officers exited their vehicle to give chase on foot, of shots fired from a location in the same direction from which the suspects had been running.
We have considered the remaining arguments and find them to be without merit.
Concur — Ellerin, J.P., Wallach, Ross, Kassal and Rubin, JJ.