Opinion
694 KA 14-00064
06-12-2015
The PEOPLE of the State of New York, Respondent, v. Jose G. JOHNSON, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase Of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Sydney V. Probst of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase Of Counsel), for Defendant–Appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Sydney V. Probst of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CARNI, SCONIERS, VALENTINO, AND WHALEN, JJ.
Opinion
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 County Court erred in refusing to suppress the handgun seized from him as he stood on the porch of his cousin's residence. Contrary to defendant's contention, the police conduct “was justified in its inception and at every subsequent stage of the encounter” (People v. Nicodemus, 247 A.D.2d 833, 835, 669 N.Y.S.2d 98, lv. denied 92 N.Y.2d 858, 677 N.Y.S.2d 88, 699 N.E.2d 448 ). The officer had an “objective, credible reason, not necessarily indicative of criminality,” to approach defendant to request information (People v. Moore, 6 N.Y.3d 496, 498, 814 N.Y.S.2d 567, 847 N.E.2d 1141 ; see People v. DeBour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ; People v. Bracy, 91 A.D.3d 1296, 1297, 937 N.Y.S.2d 501, lv. denied 20 N.Y.3d 1060, 962 N.Y.S.2d 610, 985 N.E.2d 920 ). The officer's level of suspicion and the justification for increasingly intrusive police action escalated when defendant turned and the officer observed the outline of a handgun in the pocket of defendant's windbreaker jacket. Based on that observation, the officer had at least a “founded suspicion that criminal activity [was] afoot” to support his common-law right to inquire whether the object was a gun (DeBour, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ; see People v. Hollman, 79 N.Y.2d 181, 184–185, 581 N.Y.S.2d 619, 590 N.E.2d 204 ). When defendant gave an affirmative response, the officer was entitled to pat down defendant, seize the handgun (see People v. Trott, 105 A.D.3d 1416, 1417, 963 N.Y.S.2d 806, lv. denied 21 N.Y.3d 1020, 971 N.Y.S.2d 503, 994 N.E.2d 399 ), and arrest defendant (see People v. Forbes, 244 A.D.2d 954, 954, 665 N.Y.S.2d 173, lv. denied 91 N.Y.2d 941, 671 N.Y.S.2d 721, 694 N.E.2d 890 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.