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

29
KA 14-01250
PRESENT: SMITH, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHAD L. OWENS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (LINDA M. CAMPBELL OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Vincent M.
Dinolfo, J.), rendered March 21, 2014. The judgment convicted
defendant, upon his plea of guilty, of attempted 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 attempted criminal possession of a weapon
in the second degree (Penal Law §§ 110.00, 265.03 [3]). Contrary to
defendant’s contention, County Court properly refused to suppress the
weapon. The suppression hearing evidence established that, while on
routine patrol, the police witness observed defendant walking toward
him. The police witness observed a bulge in defendant’s waistband,
which he testified was “consistent with somebody concealing a weapon.”
When defendant observed the police vehicle operated by the police
witness, and the other police vehicles traveling behind it, he covered
the bulge with his right hand and turned into an alley, walking at a
fast pace. The police witness stopped his vehicle and observed
defendant walking quickly in the alley, still holding his waistband.
After looking back toward the stopped police vehicle two or three
times, defendant began to run. The police witness continued to
observe defendant while traveling on a parallel street at a slow rate
of speed, and either one or two other police vehicles followed
defendant at a distance of 20 to 30 yards. None of the vehicles had
its lights or sirens activated. The police witness lost sight of
defendant and, when he saw defendant again, defendant ran in front of
his vehicle, no longer holding his waistband. A handgun was found in
a yard in the area where the police witness lost sight of defendant.

     Contrary to defendant’s contention, his action in discarding the
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                                                         KA 14-01250

gun was not the result of illegal police conduct (see People v Brown,
142 AD3d 1373, 1374-1375). The police “engaged in mere observation,
and [were] not in pursuit, when [they] followed defendant . . . [T]he
testimony at the suppression hearing established that the officer[s’]
conduct was unobtrusive and did not limit defendant’s freedom of
movement” (People v Feliciano, 140 AD3d 1776, 1777; see People v
Rozier, 143 AD3d 1258, 1259).




Entered:   February 3, 2017                    Frances E. Cafarell
                                               Clerk of the Court
