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

1016
KA 08-01205
PRESENT: CENTRA, J.P., FAHEY, SCONIERS, GREEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DEVIN J. GLOVER, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O’BRIEN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John R.
Schwartz, A.J.), rendered December 17, 2007. 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: Defendant appeals 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]). Contrary to defendant’s
contention, County Court properly refused to suppress both the handgun
seized by the police from defendant’s person and defendant’s
subsequent statements to the police. The record establishes that the
officers were entitled to approach defendant to conduct a common-law
inquiry because they had “a founded suspicion that criminal activity
[was] afoot” (People v De Bour, 40 NY2d 210, 223). According to the
testimony of two police officers at the suppression hearing, they were
traveling in a marked police vehicle when they observed defendant turn
and whistle toward a group of males standing in an area known for drug
sales, at which time the group immediately dispersed from the area
(see generally People v Williams, 39 AD3d 1269, 1270, lv denied 9 NY3d
871; People v Rivera, 175 AD2d 78, 79-80, lv denied 78 NY2d 1129).
The officers also testified that, upon exiting their vehicle and
approaching defendant, he “refus[ed] to remove his hand from his
pocket despite the repeated demands of . . . the officers that he do
so” (People v Mack, 49 AD3d 1291, 1292, lv denied 10 NY3d 866).
Defendant’s conduct, along with the fact that a shooting had recently
occurred in the area of the encounter, “provided the officers with
reasonable suspicion to believe that defendant posed a threat to their
safety” (id.; see People v Robinson, 278 AD2d 808, lv denied 96 NY2d
787; see generally People v Hensen, 21 AD3d 172, 176, lv denied 5 NY3d
                                 -2-                          1016
                                                         KA 08-01205

828). Thus, the frisk conducted by one of the officers at that time,
as a result of which the officer discovered a loaded handgun in
defendant’s coat pocket, “was a ‘constitutionally justified intrusion
designed to protect the safety of the officers’ . . ., and [we
conclude] that the court properly refused to suppress the evidence
seized as a result thereof, as well as defendant’s ensuing statements”
(Mack, 49 AD3d at 1292).




Entered:   September 30, 2011                  Patricia L. Morgan
                                               Clerk of the Court
