        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

332
KA 13-00818
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JUSTIN JONES, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (John
J. Ark, J.), rendered August 14, 2012. The appeal was held by this
Court by order entered October 9, 2015, decision was reserved and the
matter was remitted to Supreme Court, Monroe County, for further
proceedings (132 AD3d 1388). The proceedings were held and completed
(Alex R. Renzi, J.).

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a plea of guilty of criminal possession of a weapon in the second
degree (Penal Law § 265.03 [3]). We previously held the case,
reserved decision, and remitted the matter to Supreme Court for a
probable cause hearing to determine the lawfulness of defendant’s
arrest and the admissibility of evidence obtained by the police as a
result thereof (People v Jones, 132 AD3d 1388). A different Supreme
Court Justice conducted the probable cause hearing upon remittal, and
we conclude that the court properly determined that there was
reasonable suspicion to detain defendant until the showup
identification procedure was conducted.

     Contrary to defendant’s contention, the People established that
there was reasonable suspicion to believe that defendant “was involved
in a felony or misdemeanor,” thus justifying his forcible stop and
detention (People v Hollman, 79 NY2d 181, 185; see generally People v
Cantor, 36 NY2d 106, 112-113). A police officer who had been called
to the scene in the early morning hours heard numerous gunshots and
saw a cloud of smoke coming from the area of those gunshots, i.e., an
area between two vehicles. Immediately thereafter, the officer
observed defendant and another man “pop[] up” from behind one of the
vehicles. Inasmuch as defendant’s temporal and spatial proximity to
                                 -2-                           332
                                                         KA 13-00818

the area from where the shots were fired “made it highly unlikely that
the suspect had departed and that, almost at the same moment, an
innocent person . . . coincidentally arrived on the scene” (People v
Johnson, 63 AD3d 518, 518, lv denied 13 NY3d 797; cf. People v Mabeus,
68 AD3d 1557, 1562, lv denied 14 NY3d 842), we conclude that the
officer had the requisite reasonable suspicion to stop and detain
defendant.

     Contrary to defendant’s further contention, he was not subjected
to a de facto arrest based on the fact that he was held for
approximately 45 minutes until the showup identification procedure
could take place where, as here, the identification procedure took
place “in the course of a continuous, ongoing investigation” (People v
Woodard, 83 AD3d 1440, 1441, lv denied 17 NY3d 803; see People v Boyd,
272 AD2d 898, 899, lv denied 95 NY2d 850; cf. People v Ryan, 12 NY3d
28, 30-31; see generally People v Brisco, 99 NY2d 596, 597 n).
Finally, we conclude that, once defendant was positively identified by
two witnesses, there was probable cause for his arrest (see People v
Carson, 122 AD3d 1391, 1392, lv denied 25 NY3d 1161; People v
Dumbleton, 67 AD3d 1451, 1452, lv denied 14 NY3d 770).




Entered:   March 24, 2017                      Frances E. Cafarell
                                               Clerk of the Court
