SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
130
KA 08-00621
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
MARQUES T. CRISLER, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (JOSEPH D. WALDORF OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered January 29, 2008. 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 the gun and other tangible evidence found
inside the coat that he discarded while fleeing from the police. We
reject that contention. The initial observations of defendant by the
police gave rise to an objective, credible reason for approaching him
and asking him, in a manner that was “devoid of harassment or
intimidation,” where he had been prior to his encounter with the
police (People v De Bour, 40 NY2d 210, 220; see People v Hollman, 79
NY2d 181, 190-191; People v Moyaho,12 AD3d 692, 693, lv denied 4 NY3d
766). Contrary to the contention of defendant, his response to the
request for that information, coupled with the observation by the
police of a bulge in defendant’s pocket that appeared to be consistent
with a hidden firearm, provided the police with justification for
taking the minimal precautionary measure of asking defendant to remove
his hand from his pocket (see De Bour, 40 NY2d at 221; People v
Herold, 282 AD2d 1, 7, lv denied 97 NY2d 682; People v Dawson, 243
AD2d 318, lv denied 91 NY2d 890). We further conclude under the
circumstances of this case that the police had the requisite
reasonable suspicion to pursue defendant when he immediately fled in
response to the request to remove his hand from his pocket (see People
v Cruz, 14 AD3d 730, lv denied 4 NY3d 852; People v Fajardo, 209 AD2d
284, lv denied 84 NY2d 1031; see generally People v Sierra, 83 NY2d
-2- 130
KA 08-00621
928, 929), and that the coat was discarded by defendant during that
lawful pursuit (see People v Terry, 190 AD2d 1064, 1065, lv denied 81
NY2d 1081).
By pleading guilty, defendant forfeited his further contention
that the court should have adjourned the suppression hearing to enable
him to obtain additional evidence to present at the suppression
hearing (see generally People v Campbell, 73 NY2d 481, 486; People v
Oliveri, 49 AD3d 1208, 1209; People v Pryor, 12 AD3d 695, lv denied 4
NY3d 802).
Entered: February 10, 2011 Patricia L. Morgan
Clerk of the Court