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

440
KA 12-01580
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARCUS WILLIAMS, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MARCUS WILLIAMS, DEFENDANT-APPELLANT PRO SE.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered January 10, 2012. 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 in his main and pro se
supplemental briefs that Supreme Court erred in refusing to suppress
his pre- and post-Miranda statements because the police arrested him
without probable cause. We reject that contention. As an initial
matter, we conclude that the police had the requisite reasonable
suspicion that a crime had been committed to justify their pursuit and
detention of defendant (see People v Martinez, 80 NY2d 444, 447; see
generally People v De Bour, 40 NY2d 210, 223). A police captain heard
gunshots, and an identified citizen then gave him a description of the
shooter and his direction of flight from the area in which the
gunshots originated. Other police officers who heard the broadcast
description of the shooter observed defendant in a driveway
approximately two blocks from the scene of the shooting, and he was
nervous, sweating and breathing heavily. The police observed that he
matched the description of the suspect, and he fled when he saw the
unmarked patrol car. Defendant ran behind a house out of the sight of
an officer who pursued him, but he emerged quickly with his hands up.
Although defendant was frisked, no weapon was recovered from his
person. He was handcuffed, and other police officers quickly
recovered a gun inside a grill in the backyard of the house behind
                                 -2-                           440
                                                         KA 12-01580

which defendant had run. As the police were conducting a showup
identification procedure with the identified citizen, who was brought
to the scene where defendant was detained, defendant spontaneously
yelled out to his family nearby the name of the identified citizen and
that this person had seen defendant shoot the gun. Defendant was
arrested and, after being advised of his Miranda rights, he gave an
inculpatory statement to the police. “The information known to the
police when they placed defendant in handcuffs and held him for a
showup identification supported a reasonable suspicion of criminal
activity . . . [, i.e.,] that quantum of knowledge sufficient to
induce an ordinarily prudent and cautious [person] under the
circumstances to believe criminal activity is at hand” (People v
Dumbelton, 67 AD3d 1451, 1452, lv denied 14 NY3d 770 [internal
quotation marks omitted]). Based on defendant’s spontaneous
admission, the police had probable cause to arrest him during the
showup identification procedure.

     We have considered defendant’s remaining contentions in his pro
se supplemental brief and conclude that none requires modification or
reversal. Defendant’s challenge to the sufficiency of the evidence
before the grand jury is forfeited by his guilty plea (see People v
Milliman, 122 AD3d 1437, 1438). Finally, we conclude that the court
did not abuse its discretion in denying defendant’s motion to withdraw
his guilty plea because his “conclusory and unsubstantiated claim of
innocence is belied by his admissions during the plea colloquy”
(People v Garner, 86 AD3d 955, 955).




Entered:   June 19, 2015                        Frances E. Cafarell
                                                Clerk of the Court
