Opinion
1155 KA 15-02071
12-23-2020
The PEOPLE of the State of New York, Respondent, v. Perry C. JOHNSON, Jr., Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (HELEN SYME OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN PORTER OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (HELEN SYME OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN PORTER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of robbery in the first degree ( Penal Law § 160.15 [4] ). He contends that his waiver of the right to appeal is invalid and that the court erred in denying that part of his omnibus motion seeking to suppress physical evidence.
Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid and thus does not preclude our consideration of his suppression contention (see People v. Love , 181 A.D.3d 1193, 1193, 118 N.Y.S.3d 475 [4th Dept. 2020] ; see generally People v. Goodwin , 147 A.D.3d 1352, 1352, 46 N.Y.S.3d 448 [4th Dept. 2017], lv denied 29 N.Y.3d 1032, 62 N.Y.S.3d 301, 84 N.E.3d 973 [2017] ), we conclude that the judgment should be affirmed. The evidence at the suppression hearing established that the testifying police officer learned from a dispatch broadcast over the police radio about a nearby gunpoint robbery resulting in the theft of a motor vehicle. The dispatch specifically described the stolen vehicle as "an older model, [a] black and red [Chevrolet] [S]uburban." Shortly after receiving the dispatch, the officer traveled toward the site of the robbery and passed a parked vehicle that matched the stolen vehicle's description. As the officer turned around to investigate, the other vehicle started to drive away. The officer followed the vehicle but did not yet activate his emergency lights or attempt to stop the vehicle. When the vehicle pulled over to the side of the road, the driver, i.e., defendant, exited and started to walk away. When the officer exited his vehicle and told defendant to stop, defendant started to run away. The officer pursued defendant on foot and eventually caught up with him. He commanded defendant to get down on the ground, defendant complied, and the officer arrested him.
We conclude that the officer's conduct was justified in its inception and at every subsequent stage of the encounter leading to defendant's arrest (see generally People v. De Bour , 40 N.Y.2d 210, 222-223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ). The officer had reasonable suspicion to briefly detain defendant based on his presence in a vehicle matching the description of the stolen vehicle provided by the dispatch, the proximity of the vehicle to the location of the reported robbery, and the fact that the stop occurred close in time to the robbery (see People v. Murray , 170 A.D.3d 1650, 1651, 94 N.Y.S.3d 921 [4th Dept. 2019], lv denied 33 N.Y.3d 1107, 106 N.Y.S.3d 679, 130 N.E.3d 1289 [2019] ; People v. Torres , 167 A.D.3d 665, 666, 88 N.Y.S.3d 493 [2d Dept. 2018], lv denied 32 N.Y.3d 1210, 99 N.Y.S.3d 224, 122 N.E.3d 1137 [2019] ; People v. Young , 68 A.D.3d 1761, 1761, 891 N.Y.S.2d 577 [4th Dept. 2009], lv denied 15 N.Y.3d 780, 907 N.Y.S.2d 468, 933 N.E.2d 1061 [2010] ).
Even assuming, arguendo, that the officer possessed no more than a founded suspicion that criminal activity was afoot at the time he initially encountered defendant and instructed him to stop (see De Bour , 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ; People v. Atkinson , 185 A.D.3d 1438, 1439, 128 N.Y.S.3d 129 [4th Dept. 2020], lv denied 35 N.Y.3d 1092, 131 N.Y.S.3d 288, 155 N.E.3d 781 [2020] ; People v. Brown , 67 A.D.3d 1439, 1439-1440, 888 N.Y.S.2d 833 [4th Dept. 2009], lv denied 14 N.Y.3d 798, 899 N.Y.S.2d 132, 925 N.E.2d 936 [2010] ), we conclude that the officer developed "the requisite reasonable suspicion to pursue and detain [defendant] based on the combination of the abovementioned specific circumstances indicating that defendant may have been engaged in criminal activity and his [immediate] flight in response to the approach by the officer[ ]" ( Atkinson , 185 A.D.3d at 1439, 128 N.Y.S.3d 129 ; see People v. Parker , 32 N.Y.3d 49, 56-57, 84 N.Y.S.3d 838, 109 N.E.3d 1138 [2018] ; People v. Harmon , 170 A.D.3d 1674, 1675, 96 N.Y.S.3d 783 [4th Dept. 2019], lv denied 34 N.Y.3d 932, 109 N.Y.S.3d 695, 133 N.E.3d 395 [2019] ).