Opinion

BROWN, KRYSTIAN, PEOPLE v

Court
Appellate Division of the Supreme Court of the State of New York
Filed
Sep 30, 2016
Status
Published
Cited by
0 cases
Authority
More cited than 3.2%

The opinion

SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

779

KA 14-00977

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

KRYSTIAN BROWN, DEFENDANT-APPELLANT.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CAITLIN M. CONNELLY OF

COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (DAVID A.

HERATY OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Supreme Court, Erie County (M.

William Boller, A.J.), rendered May 21, 2014. The judgment convicted

defendant, upon his plea of guilty, of criminal possession of a weapon

in the second degree.

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed.

Memorandum: On appeal 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]), defendant contends that Supreme Court erred

in refusing to suppress physical evidence and his statement to the

police. We reject that contention.

According to the evidence presented by the People at the

suppression hearing, a police officer driving a patrol vehicle on Main

Street in Buffalo observed defendant standing outside a storefront by

a “No Loitering” sign. The officer had seen defendant standing in

front of the same storefront three hours before. Upon the approach of

the officer’s vehicle, defendant turned and walked quickly into the

store. The officer parked and exited the vehicle, and followed

defendant into the store, whereupon he observed defendant walking into

a rear storage room while the store manager yelled for defendant to

“get out.” The officer then heard a “loud thump.” Defendant emerged

from the storage room only seconds later and explained that he had to

use the bathroom. The officer searched the storage room and found a

white sock concealing a gun. He then ordered a second officer on the

scene to “cuff” defendant, who protested, “that’s not my gun.” At the

central booking office of the police department, defendant allegedly

stated: “[I]t’s not a lot of hope for me, like you all, my life is

over. It’s a bad situation, you know?” The two police officers

testified at the hearing that defendant was not under arrest until

-2- 779

KA 14-00977

after the gun was found and that, up until that point, he was free to

leave the store.

Defendant contends that the court should have suppressed the gun

because it was recovered as a result of illegal police pursuit. We

reject that contention. The court properly determined that the

officer was engaged merely in observation and was not in pursuit when

he followed defendant into the store (see People v Feliciano, 140 AD3d

1776, 1777; see generally People v Howard, 50 NY2d 583, 592, cert

denied 449 US 1023). The testimony at the suppression hearing

established that defendant entered the store before the officer parked

and exited his vehicle. Furthermore, the officer never activated his

vehicle’s overhead lights or siren, and did not engage defendant until

after defendant emerged from the storage room. Before the gun was

found, “the officer’s conduct was unobtrusive and did not limit

defendant’s freedom of movement” (Feliciano, 140 AD3d at 1777) and,

thus, the court properly determined that defendant did not discard the

gun in response to any illegal police conduct.

Defendant further contends that the police arrested him before

the gun was recovered, and thus they lacked probable cause to arrest

him for criminal possession of a weapon. We likewise reject that

contention. An arrest occurs when there is “a significant

interruption of [a person’s] liberty of movement as a result of police

action,” whether or not that person “submits to the authority of the

badge or whether he succumbs to force” (People v Cantor, 36 NY2d 106,

111; see People v Lee, 96 AD3d 1522, 1527). The testimony at the

suppression hearing established that, after defendant emerged from the

storage room, the police did not issue any commands to him and did not

restrain him in any way or otherwise prevent him from leaving the

store. Rather, defendant remained in the store of his own accord. We

thus conclude that, before the gun was recovered, a reasonable person

in defendant’s position, innocent of any crime, would not have

believed that he was under arrest (see People v Yukl, 25 NY2d 585,

589, cert denied 400 US 851; People v Vargas, 109 AD3d 1143, 1143, lv

denied 22 NY3d 1044).

Finally, we conclude that the sentence is not unduly harsh or

severe.

Entered: September 30, 2016 Frances E. Cafarell

Clerk of the Court

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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