SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
369
KA 11-00939
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JOHN GAYDEN, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Vincent M.
Dinolfo, J.), rendered March 3, 2011. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree (two counts) and criminal possession of a weapon
in the third 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 two counts of criminal possession of a weapon in the
second degree (Penal Law § 265.03 [1] [b]; [3]) and one count of
criminal possession of a weapon in the third degree (§ 265.02 [1]),
defendant contends that County Court erred in refusing to suppress the
weapon he discarded while he was being pursued by the police. We
reject that contention. According to the evidence at the suppression
hearing, there was a radio dispatch concerning an anonymous tip that
two individuals were carrying handguns in a certain location, and a
police officer who arrived at the scene less than two minutes after
the dispatch observed that defendant and another individual matched
the general description of the suspects and were within a block of the
location described in the tip. The officer thus had a founded
suspicion that criminal activity was afoot, justifying his initial
common-law inquiry of defendant (see People v Price, 109 AD3d 1189,
1190, lv denied 22 NY3d 1043; see generally People v Stewart, 41 NY2d
65, 69). Defendant’s flight upon seeing the officer exit his vehicle
provided the officer with the requisite reasonable suspicion of
criminal activity to warrant his pursuit of defendant (see Price, 109
AD3d at 1190). Defendant dropped the gun during the pursuit, which
gave rise to probable cause to arrest defendant (see People v Wilson,
49 AD3d 1224, 1224-1225, lv denied 10 NY3d 966; People v Lindsay, 249
AD2d 937, 938, lv denied 92 NY2d 900), and “the recovery of the gun
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KA 11-00939
discarded during [defendant’s] flight was lawful inasmuch as the
officer’s pursuit . . . of defendant [was] lawful” (People v Norman,
66 AD3d 1473, 1474, lv denied 13 NY3d 940).
Entered: March 27, 2015 Frances E. Cafarell
Clerk of the Court