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

540
KA 14-00958
PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHRISTOPHER L. WALTERS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (ANTHONY
M. ROSSI OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered May 29, 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 the weapon found by the police in the pocket
of a sweatshirt that they recovered from an unoccupied seat on a city
bus. According to defendant, the weapon should be suppressed because
he was illegally detained by police for 1½ hours before they arrested
him for possession of the weapon. We reject defendant’s contention.
The record of the suppression hearing establishes that the police
asked defendant to leave the bus because he matched the description
provided by an identified complainant. Before the complainant arrived
for a showup identification procedure, a police officer returned to
the bus to look for a black sweatshirt, based on the description of
the suspect’s clothing that was provided by the complainant, and the
sweatshirt was located in a seat that was in proximity to where
defendant was seated. The officer observed the gun in the pocket when
he picked up the sweatshirt. Following the complainant’s
identification of defendant as the man who boarded the bus with a gun,
defendant was transported to police headquarters; however, he was not
formally charged until the police had reviewed the videotape from the
bus, which showed him removing the sweatshirt and changing seats after
the bus had stopped and the police arrived.

     The court properly determined that defendant abandoned the gun
                                 -2-                           540
                                                         KA 14-00958

following proper police conduct and thus that he lacked standing to
seek suppression of that evidence (see People v Stevenson, 273 AD2d
826, 827; see also People v Hall, 152 AD2d 905, 905-906, affd 74 NY2d
822; see generally People v Ramirez-Portoreal, 88 NY2d 99, 110). In
any event, contrary to defendant’s contention, the 1½ hour detention
during which the police obtained the videotape does not constitute an
illegal detention (cf. People v Ryan, 12 NY3d 28, 30-31). Indeed, the
police had probable cause to arrest defendant at the scene following
the positive identification of defendant and the seizure of the weapon
(see People v Williams, 129 AD3d 1583, 1584, lv denied 26 NY3d 973;
cf. Ryan, 12 NY3d at 30).




Entered:   June 17, 2016                       Frances E. Cafarell
                                               Clerk of the Court
