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

1266
KA 11-02613
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BOBBY PRICE, JR., DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG,
JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered December 12, 2011. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a weapon in
the fourth degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of criminal possession of a weapon in the fourth
degree (Penal Law § 265.01 [1]). Defendant contends that County Court
erred in refusing to suppress tangible evidence that the police seized
from his person after stopping his vehicle. Defendant failed to
preserve for our review his contention that the evidence must be
suppressed based on the use of excessive force by the police because
he failed to raise that specific contention in his motion papers or at
the hearing (see People v Gomez, 193 AD2d 882, 883, lv denied 82 NY2d
708; see generally People v Jacquin, 71 NY2d 825, 826-827; People v
Caballero, 23 AD3d 1031, 1032, lv denied 6 NY3d 846).

     In any event, that contention lacks merit. “Claims that law
enforcement officials used excessive force in the course of making an
arrest, investigatory stop, or other seizure of a person are properly
analyzed under the Fourth Amendment’s objective reasonableness
standard . . . Determining whether the force used to effect a
particular seizure is reasonable under the Fourth Amendment requires a
careful balancing of the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the countervailing
governmental interests at stake . . . The test of reasonableness under
the Fourth Amendment requires careful attention to the facts and
circumstances of each particular case, including the severity of the
crime at issue, whether the suspect poses an immediate threat to the
                                 -2-                          1266
                                                         KA 11-02613

safety of the officers or others, and whether he [or she] is actively
resisting arrest or attempting to evade arrest by flight” (People v
Smith, 95 AD3d 21, 26 [internal quotation marks omitted]; see Graham v
Connor, 490 US 386, 388).

     Here, the officers stopped the vehicle being driven by defendant,
removed defendant from the vehicle at gunpoint, and immediately asked
him where the gun was located. Defendant was being sought in
connection with the crime of burglary in the first degree, a class B
violent felony, and was believed to be in possession of a handgun,
based upon information provided by an identified citizen.
Furthermore, although he did not actively resist the police upon being
stopped, he had left the crime scene and thus was attempting to evade
arrest by flight. Consequently, applying the Graham test, we conclude
that the officers’ use of force was reasonable under the Fourth
Amendment. Finally, insofar as defendant contends that the officers
stopped him without probable cause, we agree with the court that the
information available to the police justified a level three intrusion
under People v De Bour (40 NY2d 210, 223; see People v Hollman, 79
NY2d 181, 184-185; cf. People v Moore, 6 NY3d 496, 498-499), and that
the actions of the police required only that level of knowledge.

     We have considered defendant’s remaining contention and conclude
that it is without merit.




Entered:   December 27, 2013                   Frances E. Cafarell
                                               Clerk of the Court
