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

254
KA 11-01328
PRESENT: SMITH, J.P., FAHEY, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                             MEMORANDUM AND ORDER

JAVIER BACHILLER, DEFENDANT-RESPONDENT.


WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MICHAEL A.
KASMAREK OF COUNSEL), FOR APPELLANT.

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CHRISTINE M. COOK OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Onondaga County Court (William D.
Walsh, J.), dated February 15, 2011. The order granted the motion of
defendant to suppress certain physical evidence.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law, that part of the omnibus motion to
suppress physical evidence is denied, and the matter is remitted to
Onondaga County Court for further proceedings on the indictment.

     Memorandum: The People appeal from an order granting that part
of defendant’s omnibus motion to suppress physical evidence, i.e., a
handgun. We agree with the People that reversal is required.

     The testimony at the suppression hearing established that an
officer responded to a report of a possible stabbing in the City of
Syracuse and observed approximately 100 people in the street leaving a
house party. In addition to some “minor disturbances,” there was also
“yelling.” The area in which the reported stabbing occurred had been
the scene of numerous violent crimes and a recent homicide. After the
responding officer exited his patrol car, his attention was drawn to a
heated argument between defendant and another man. The other man
turned and ran through adjacent backyards, and defendant chased him.

     As defendant correctly concedes, the report of a possible
stabbing coupled with the responding officer’s observations at the
scene furnished the police with the requisite “founded suspicion that
criminal activity [was] afoot” sufficient to justify the common-law
right of inquiry (People v Moore, 6 NY3d 496, 498; see People v De
Bour, 40 NY2d 210, 223). “This right authorized the police to ask
questions of defendant—and to follow defendant while attempting to
engage him—but not to seize him in order to do so” (Moore, 6 NY3d at
500).
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     The issue before us thus is whether the police thereafter
obtained the requisite reasonable suspicion to justify their pursuit
of defendant (see generally People v Sierra, 83 NY2d 928, 929; People
v Martinez, 80 NY2d 444, 446; People v Riddick, 70 AD3d 1421, 1422, lv
denied 14 NY3d 844). “Flight alone, . . . or even in conjunction with
equivocal circumstances that might justify a police request for
information . . . , is insufficient to justify pursuit because an
individual has a right ‘to be let alone’ and refuse to respond to
police inquiry” (People v Holmes, 81 NY2d 1056, 1058; see Riddick, 70
AD3d at 1422). However, “a defendant’s flight in response to an
approach by the police, combined with other specific circumstances
indicating that the suspect may be engaged in criminal activity, may
give rise to reasonable suspicion” (Sierra, 83 NY2d at 929 [emphasis
added]; see Holmes, 81 NY2d at 1058; Riddick, 70 AD3d at 1422). In
determining whether a pursuit was justified by reasonable suspicion,
“ ‘the emphasis should not be narrowly focused on . . . any . . .
single factor, but [rather] on an evaluation of the totality of
circumstances, which takes into account the realities of everyday life
unfolding before a trained officer’ ” (People v Stephens, 47 AD3d 586,
589, lv denied 10 NY3d 940).

     Here, the responding officer and two other officers patrolled the
area searching for defendant and the other man in order to investigate
whether they were involved in the alleged stabbing or in other
criminal activity. The initial responding officer drove around the
surrounding area until he saw defendant. When defendant observed the
patrol car, he “immediately turned and began to walk in a brisk manner
. . . in the opposite direction [from which] he was heading.” The
responding officer then radioed the two other officers and notified
them of defendant’s location and direction of travel. Shortly
thereafter, the two officers observed defendant moving toward them at
a fast pace. When defendant saw the officers, he stopped, turned, and
ran in the opposite direction. While defendant was running, the two
officers observed him grab and hold onto an object in his waistband
area with his left hand. Both officers testified that they believed
that defendant was grabbing a gun concealed in his waistband. One of
the officers yelled to the other that he believed defendant had a gun,
and both officers drew their service weapons and pursued defendant as
he fled. Defendant did not respond to the officers’ repeated requests
to stop and show his hands. As defendant was running, he discarded a
handgun, which the police later recovered.

     We agree with the People that defendant’s flight from the police,
coupled with his actions in grabbing an object at his waistband, gave
rise to a reasonable suspicion sufficient to justify their pursuit of
defendant (see Moore, 6 NY3d at 500-501; People v Zeigler, 61 AD3d
1398, 1398-1399, lv denied 13 NY3d 864; see also People v Pines, 99
NY2d 525; People v Crisler, 81 AD3d 1308, 1309, lv denied 17 NY3d 793;
Stephens, 47 AD3d at 587-589). Although defendant contends that the
police did not know what he was holding in his left hand, “[i]t is
quite apparent to an experienced police officer, and indeed it may
almost be considered common knowledge, that a handgun is often carried
in the waistband” (People v Benjamin, 51 NY2d 267, 271; see Zeigler,
61 AD3d at 1399; see also Holmes, 81 NY2d at 1058). Courts have long
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                                                         KA 11-01328

held that the police need not “await the glint of steel” before acting
to preserve their safety (Benjamin, 51 NY2d at 271; see People v
Stokes, 262 AD2d 975, 976, lv denied 93 NY2d 1028). Notably,
defendant was not simply reaching in the direction of his waistband.
Rather, the two officers as well as the initial responding officer,
who was also pursuing defendant, testified that defendant was
clutching an object that appeared to be a gun at his waistband, and
the court “fully credit[ed]” their testimony.

     Thus, under the circumstances presented here, we conclude that
the court erred in granting that part of defendant’s omnibus motion
seeking suppression of the physical evidence seized by the police.




Entered:   March 16, 2012                       Frances E. Cafarell
                                                Clerk of the Court
