Appeal from a judgment of the Supreme Court, Erie County (M. William Boiler, A.J.), rendered August 5, 2011. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree and escape in the second degree.
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, inter alia, criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). Defendant contends that he was forcibly stopped in the absence of the requisite reasonable suspicion and thus that Supreme Court erred in refusing to suppress the gun that defendant dropped during a struggle with police. We reject that contention. The
We reject defendant’s contention that the initial encounter constituted a level-three forcible stop without the requisite reasonable suspicion that he was involved in a crime (see generally People v Moore, 6 NY3d 496, 498-499 [2006]; People v De Bour, 40 NY2d 210, 223 [1976]). Inasmuch as defendant matched the physical description of the person reported to have a gun and was observed in proximity of a silver Grand Prix, and “based upon defendant’s physical and temporal proximity to the scene of the reported incident” (People v McKinley, 101 AD3d 1747, 1748 [2012]), we conclude that the police initially had a common-law right of inquiry based upon a founded suspicion that criminal activity was afoot (see id.; see generally People v Garcia, 20 NY3d 317, 322 [2012]; People v Hollman, 79 NY2d 181, 185 [1992]). The court properly determined that the police thereafter had the requisite reasonable suspicion that defendant “may be engaged in criminal activity” based upon those factors, together with defendant’s flight from police (People v Sierra, 83 NY2d 928, 929 [1994]; cf. People v Cady, 103 AD3d 1155, 1156 [2013]; People v Riddick, 70 AD3d 1421, 1422-1423 [2010], lv denied 14 NY3d 844 [2010]). Probable cause for defendant’s arrest was established when a police witness observed defendant pull a gun from his waistband while fleeing from the police (see generally Moore, 6 NY3d at 498-499). We therefore reject defendant’s further contention that his statement to the police was the product of an illegal seizure and also should have been suppressed.
Contrary to defendant’s contention, the court properly determined that the identifications of defendant by four police witnesses from a photograph at the grand jury were confirmatory, and thus properly denied his request for a Wade hearing to