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

762
KA 11-01645
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WAYNE THOMPSON, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered July 15, 2011. The judgment convicted
defendant, upon his plea of guilty, of burglary 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 guilty plea of burglary in the second degree (Penal Law §
140.25 [2]). Contrary to defendant’s contention, Supreme Court
properly refused to suppress physical evidence seized from him and his
statements to a police officer. Defendant contends that the police
had only a common-law right of inquiry under level two of People v De
Bour (40 NY2d 210, 223), but we conclude that level three applies
here, thus authorizing the police officer’s forcible stop and
detention of defendant (see generally People v Moore, 6 NY3d 496, 498-
499). A retired police lieutenant (hereafter, witness) telephoned the
police and gave a description of a man to the dispatcher, after
observing the man enter the breezeway of his neighbor’s house and then
hearing a bang or a thud. An officer responded to the call in less
than one minute and observed defendant, who matched the description
given by the witness, walking down the driveway and carrying a blue
gift bag. The officer told defendant to stop and, when defendant
ignored the officer, the officer grabbed his arm and asked him various
questions. The officer could see that the blue gift bag contained
rolls of coins. Under those circumstances, we conclude that the
officer had reasonable suspicion to stop and detain defendant (see
People v Powell, 101 AD3d 1783, 1785, lv denied 20 NY3d 1102).

     Contrary to defendant’s further contention, the court properly
sentenced him as a persistent violent felony offender (see Penal Law §
70.08 [1]). Defendant was convicted of attempted burglary in the
                                 -2-                          762
                                                        KA 11-01645

second degree (§§ 110.00, 140.25 [2]) in 1997, and two counts of
burglary in the second degree (§ 140.25 [2]) in 2004. The
adjudication of defendant as a second violent felony offender in 2004
is binding upon defendant (see CPL 400.15 [8]; People v Tocci, 52 AD3d
541, 542, lv denied 11 NY3d 858; see also CPL 400.15 [7] [b]).
Defendant admitted at the 2004 sentencing hearing that he had a prior
violent felony conviction, and he therefore cannot contest the court’s
use of that predicate violent felony conviction herein for purposes of
determining whether he is a persistent violent felony offender (see
Tocci, 52 AD3d at 542; People v Wilson, 231 AD2d 912, 913, lv denied
89 NY2d 868). In any event, the People established defendant’s
conviction of the prior violent felonies beyond a reasonable doubt
(see CPL 400.15 [7] [a]; People v Clyde, 90 AD3d 1594, 1596, lv denied
19 NY3d 971), and further established a period of incarceration that
tolled the 10-year limitation (see Penal Law § 70.04 [1] [b] [iv],
[v]; cf. People v Hamilton, 49 AD3d 1163, 1164), and defendant failed
to meet his burden of establishing that either the 1997 or the 2004
conviction was unconstitutionally obtained (see generally People v
Konstantinides, 14 NY3d 1, 14-15).




Entered:   June 14, 2013                       Frances E. Cafarell
                                               Clerk of the Court
