People v. Joseph

Judgment, Supreme Court, New York County (Robert H. Straus, J.), rendered March 21, 2005, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of IV2 to 3 years, unanimously affirmed.

The court properly denied defendant’s suppression motion. It is undisputed that, based on an anonymous 911 call reporting that a “slim Black male, with dreadlocks, in a white tee shirt” who possessed drugs was coming in and out of a building at 73 West 118th Street from which shots had been heard, the police officers, who responded to a radio run within minutes, had a “founded suspicion” that criminality was afoot when they observed defendant, who was the only person there at the time *404they arrived and who fit the radioed description, coming out of the specified building. While conceding that the officers had a sufficient basis for a common-law inquiry, defendant argues that the subsequent police conduct constituted a seizure, which was impermissible without “reasonable suspicion” of criminality. However, the record supports the court’s finding that the two police officers who initially responded did not exceed the proper bounds of a common-law inquiry, when one of them, with his hand on his holster, approached defendant in the middle of the street and, while five feet away, told defendant, “[L]et me see your hands,” and asked him if he had anything on him that he should know about. Defendant responded “no, officer, no,” whereupon the officer asked, “[D]o you have any weapon on you, a gun?” None of these actions interfered with defendant’s freedom of movement, and the encounter did not become a seizure until after defendant responded by lifting his tee shirt above his waist and saying, “[N]o. You can check me,” in the process revealing a folded knife, subsequently determined to be an illegal gravity knife, clipped to his belt. Concur—Andrias, J.E, Saxe, Buckley, Gonzalez and McGuire, JJ.