Opinion
338 KA 13-00645.
04-29-2016
The PEOPLE of the State of New York, Respondent, v. Jimmie L. JOHNSON, Jr., Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Daniel Gross of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of Counsel), for Respondent.
PRESENT: SMITH, J.P., DeJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
MEMORANDUM: Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03[1][b] ; [3] ). Contrary to defendant's contention, Supreme Court properly refused to suppress evidence, including a handgun, seized by a police officer from defendant's person. A Rochester police officer testified that he stopped defendant's bicycle for a violation of the Vehicle and Traffic Law, and the court's determination to credit that testimony over defendant's evidence to the contrary “is entitled to great deference” ( People v. Frazier, 52 A.D.3d 1317, 1317, 860 N.Y.S.2d 367, lv. denied 11 N.Y.3d 788, 866 N.Y.S.2d 614, 896 N.E.2d 100 ; see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 ). “Great weight must be accorded to the determination of the suppression court because of its ability to observe and assess the credibility of the witnesses, and its findings should not be disturbed unless clearly erroneous or unsupported by the hearing evidence” (People v. Coleman, 306 A.D.2d 941, 941, 760 N.Y.S.2d 797, lv. denied 1 N.Y.3d 596, 776 N.Y.S.2d 228, 808 N.E.2d 364 ; see People v. Mateo, 2 N.Y.3d 383, 414, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828 ). Here, the People presented evidence establishing that, as defendant fled the scene, the officer observed him remove an object from his waistband and move his hands in a way that led the officer to conclude that defendant was attempting to chamber a round of ammunition into a semiautomatic handgun, providing the officer with reasonable suspicion to detain defendant (see People v. Curry, 81 A.D.3d 1315, 1315, 916 N.Y.S.2d 391, lv. denied 16 N.Y.3d 858, 923 N.Y.S.2d 420, 947 N.E.2d 1199 ; People v. Wilson, 5 A.D.3d 408, 409, 773 N.Y.S.2d 95, lv. denied 2 N.Y.3d 809, 781 N.Y.S.2d 308, 814 N.E.2d 480 ). Upon observing the weapon in defendant's hand, the officer had probable cause to arrest defendant (see People v. Madrid, 52 A.D.3d 530, 531, 859 N.Y.S.2d 717, lv. denied 11 N.Y.3d 790, 866 N.Y.S.2d 617, 896 N.E.2d 103 ; 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.