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

779
KA 14-00977
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KRYSTIAN BROWN, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CAITLIN M. CONNELLY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (DAVID A.
HERATY OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered May 21, 2014. 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: On appeal 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]), defendant contends that Supreme Court erred
in refusing to suppress physical evidence and his statement to the
police. We reject that contention.

     According to the evidence presented by the People at the
suppression hearing, a police officer driving a patrol vehicle on Main
Street in Buffalo observed defendant standing outside a storefront by
a “No Loitering” sign. The officer had seen defendant standing in
front of the same storefront three hours before. Upon the approach of
the officer’s vehicle, defendant turned and walked quickly into the
store. The officer parked and exited the vehicle, and followed
defendant into the store, whereupon he observed defendant walking into
a rear storage room while the store manager yelled for defendant to
“get out.” The officer then heard a “loud thump.” Defendant emerged
from the storage room only seconds later and explained that he had to
use the bathroom. The officer searched the storage room and found a
white sock concealing a gun. He then ordered a second officer on the
scene to “cuff” defendant, who protested, “that’s not my gun.” At the
central booking office of the police department, defendant allegedly
stated: “[I]t’s not a lot of hope for me, like you all, my life is
over. It’s a bad situation, you know?” The two police officers
testified at the hearing that defendant was not under arrest until
                                 -2-                           779
                                                         KA 14-00977

after the gun was found and that, up until that point, he was free to
leave the store.

     Defendant contends that the court should have suppressed the gun
because it was recovered as a result of illegal police pursuit. We
reject that contention. The court properly determined that the
officer was engaged merely in observation and was not in pursuit when
he followed defendant into the store (see People v Feliciano, 140 AD3d
1776, 1777; see generally People v Howard, 50 NY2d 583, 592, cert
denied 449 US 1023). The testimony at the suppression hearing
established that defendant entered the store before the officer parked
and exited his vehicle. Furthermore, the officer never activated his
vehicle’s overhead lights or siren, and did not engage defendant until
after defendant emerged from the storage room. Before the gun was
found, “the officer’s conduct was unobtrusive and did not limit
defendant’s freedom of movement” (Feliciano, 140 AD3d at 1777) and,
thus, the court properly determined that defendant did not discard the
gun in response to any illegal police conduct.

     Defendant further contends that the police arrested him before
the gun was recovered, and thus they lacked probable cause to arrest
him for criminal possession of a weapon. We likewise reject that
contention. An arrest occurs when there is “a significant
interruption of [a person’s] liberty of movement as a result of police
action,” whether or not that person “submits to the authority of the
badge or whether he succumbs to force” (People v Cantor, 36 NY2d 106,
111; see People v Lee, 96 AD3d 1522, 1527). The testimony at the
suppression hearing established that, after defendant emerged from the
storage room, the police did not issue any commands to him and did not
restrain him in any way or otherwise prevent him from leaving the
store. Rather, defendant remained in the store of his own accord. We
thus conclude that, before the gun was recovered, a reasonable person
in defendant’s position, innocent of any crime, would not have
believed that he was under arrest (see People v Yukl, 25 NY2d 585,
589, cert denied 400 US 851; People v Vargas, 109 AD3d 1143, 1143, lv
denied 22 NY3d 1044).

     Finally, we conclude that the sentence is not unduly harsh or
severe.




Entered:   September 30, 2016                   Frances E. Cafarell
                                                Clerk of the Court
