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

966
KA 11-01766
PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHRISTOPHER PRICE, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered August 5, 2011. The judgment
convicted defendant, upon his plea of guilty, of criminal possession
of a weapon in the second degree and escape 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, inter alia, criminal possession of a
weapon in the second degree (Penal Law § 265.03 [3]). Defendant
contends that he was forcibly stopped in the absence of the requisite
reasonable suspicion and thus that Supreme Court erred in refusing to
suppress the gun that defendant dropped during a struggle with police.
We reject that contention. The record establishes that police
officers responded to a report of a black male in his twenties
standing near a silver Grand Prix holding a gun, with two younger
males approaching him. Defendant was observed standing near a silver
Grand Prix with two other males at a gas station that was one block
from the reported incident. Based upon the observation of one officer
that defendant was acting suspiciously, another officer asked
defendant whether he would answer a couple of questions and permit her
to ensure that he did not have a weapon. Although defendant initially
complied with the request by placing his hands on the wall, he fled
the scene before the pat-down search commenced. He was tackled on the
street shortly thereafter by another police officer who was exiting a
building on the street and observed defendant running toward him and
removing a gun from his waistband.

      We reject defendant’s contention that the initial encounter
constituted a level-three forcible stop without the requisite
reasonable suspicion that he was involved in a crime (see generally
                                 -2-                           966
                                                         KA 11-01766

People v Moore, 6 NY3d 496, 498-499; People v De Bour, 40 NY2d 210,
223). Inasmuch as defendant matched the physical description of the
person reported to have a gun and was observed in proximity of a
silver Grand Prix, and “based upon defendant’s physical and temporal
proximity to the scene of the reported incident” (People v McKinley,
101 AD3d 1747, 1748), we conclude that the police initially had a
common-law right of inquiry based upon a founded suspicion that
criminal activity was afoot (see id.; see generally People v Garcia,
20 NY3d 317, 322; People v Hollman, 79 NY2d 181, 185). The court
properly determined that the police thereafter had the requisite
reasonable suspicion that defendant “may be engaged in criminal
activity” based upon those factors, together with defendant’s flight
from police (People v Sierra, 83 NY2d 923, 929; cf. People v Cady, 103
AD3d 1155, 1156; People v Riddick, 70 AD3d 1421, 1422-1423, lv denied
14 NY3d 844). Probable cause for defendant’s arrest was established
when a police witness observed defendant pull a gun from his waistband
while fleeing from the police (see generally Moore, 6 NY3d at 498-
499). We therefore reject defendant’s further contention that his
statement to the police was the product of an illegal seizure and also
should have been suppressed.

     Contrary to defendant’s contention, the court properly determined
that the identifications of defendant by four police witnesses from a
photograph at the grand jury were confirmatory, and thus properly
denied his request for a Wade hearing to determine whether there was
an independent basis for each of the identifications (see People v
Wharton, 74 NY2d 921, 923). The grand jury minutes and the record of
the suppression hearing establish that each of the four witnesses was
involved in the apprehension and arrest of defendant and that two of
the witnesses accompanied defendant for medical treatment. We
therefore conclude that the record establishes that each of the
officers had the opportunity to observe defendant at close range and
in broad daylight (cf. People v Boyer, 6 NY3d 427, 432-433). A Wade
hearing is not warranted where, as here, the “risk of undue
suggestiveness is obviated [because] the identifying officer[s’]
observation[s] of the defendant . . . could not be mistaken” (id. at
432).




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