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

173
KA 14-00730
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BRANDYN T. BRADLEY, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MEGHAN E. LEYDECKER
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered March 25, 2014. 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’s sole contention is that Supreme
Court erred in refusing to suppress physical evidence seized from him
and his statements to the police on the ground that the initial
approach by a police officer was unlawful. We reject that contention.
It is well established that, in evaluating police conduct, we “must
determine whether the action taken was justified in its inception and
at every subsequent stage of the encounter” (People v Nicodemus, 247
AD2d 833, 835, lv denied 92 NY2d 858, citing People v De Bour, 40 NY2d
210, 215). “The minimal intrusion of approaching to request
information is permissible when there is some objective credible
reason for that interference not necessarily indicative of
criminality” (De Bour, 40 NY2d at 223; see People v McIntosh, 96 NY2d
521, 525; People v Hollman, 79 NY2d 181, 184). Here, the testimony at
the suppression hearing established that the officer and his partner
were on routine patrol in Buffalo when the officer observed known
members of two different gangs congregating outside a residence on
Davidson Avenue. According to the officer, one of the gang members
was in a neighborhood occupied by the other gang, the neighborhoods in
which each gang operated were not particularly close, and the officer
had never seen members of those gangs interacting before. The officer
testified that this unusual situation raised his suspicion because he
was unsure whether the gang members were “starting anything, or what
                                 -2-                           173
                                                         KA 14-00730

was going on” outside the residence. When the officer exited his
patrol vehicle and approached the residence to request information, he
observed defendant—who was unknown to the officer at that time and had
been sitting on the porch—turn away, ring the doorbell, and begin to
pull a handgun out of his pocket. The officer eventually seized the
handgun, and defendant was arrested. Contrary to defendant’s
contention, we conclude that the officer’s testimony establishes that
he “[did] not act on whim or caprice and [had] an articulable reason
not necessarily related to criminality for making the approach”
(Hollman, 79 NY2d at 190; see generally De Bour, 40 NY2d at 213).




Entered:   March 18, 2016                       Frances E. Cafarell
                                                Clerk of the Court
