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

1122
KA 09-02340
PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

TERRANCE C. RAINEY, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered March 18, 2009. The appeal was held by
this Court by order entered October 4, 2013, decision was reserved and
the matter was remitted to Monroe County Court for further proceedings
(110 AD3d 1464). The proceedings were held and completed (Douglas A.
Randall, J.).

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

     Memorandum: We previously held this case, reserved decision, and
remitted the matter to County Court to determine, in the context of
defendant’s contention that the court erred in denying his suppression
motion, “whether the police engaged in a pursuit and if so, whether
that pursuit was legal” (People v Rainey, 110 AD3d 1464, 1466). Upon
remittal, the court found that the police officers were not in pursuit
of defendant when he discarded the drugs, and we now affirm. The
court properly concluded that the police officers were engaged in mere
observation, which does not require reasonable suspicion (see People v
Howard, 50 NY2d 583, 592, cert denied 449 US 1023). The testimony at
the suppression hearing established that defendant’s freedom of
movement was not restricted because the police officer who followed
defendant did not draw his gun, did not prevent defendant from moving,
and did not give any verbal commands to defendant until after
defendant dropped the plastic bag containing drugs (see People v Bora,
83 NY2d 531, 535-536; Howard, 50 NY2d at 592).

     Defendant’s sentence is not unduly harsh or severe.


Entered:   November 14, 2014                       Frances E. Cafarell
                                                   Clerk of the Court
