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

581
KA 12-01872
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROBERTO FELICIANO, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Victoria M.
Argento, J.), rendered August 2, 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 that County Court erred
in refusing to suppress physical evidence, i.e., a handgun, and his
statement to the police. We reject that contention. According to the
evidence presented at the suppression hearing, a police officer
received radio dispatches that shots had been fired and that an
anonymous caller had reported that a male suspect on a bicycle was in
possession of a handgun. Upon responding to the vicinity within
minutes of receiving the dispatches, the officer observed defendant,
who generally matched the description of the suspect, riding a bicycle
on the street (see generally People v Moczo, 174 AD2d 365, 365, lv
denied 78 NY2d 1013). The officer pulled alongside defendant in his
police vehicle and, without exiting his vehicle, the officer asked
defendant to “stop his bike for a moment.” Contrary to defendant’s
contention, we conclude that “the information provided in the . . .
dispatch[es] coupled with the officer[’s] observations provided the
[officer] with ‘an objective, credible reason for initially
approaching defendant and requesting information from him’ ” (People v
Burnett, 126 AD3d 1491, 1492; see generally People v Hollman, 79 NY2d
181, 184; People v De Bour, 40 NY2d 210, 223). The conduct of the
officer in asking defendant to stop his bicycle for a moment did not
elevate the encounter beyond a level one intrusion (see People v
Reyes, 83 NY2d 945, 946, cert denied 513 US 991; People v Bent, 206
                                 -2-                           581
                                                         KA 12-01872

AD2d 926, 926, lv denied 84 NY2d 906).

     Contrary to defendant’s further contention, the officer engaged
in mere observation, and was not in pursuit, when he followed
defendant after defendant ignored the officer’s question and continued
to ride away on the bicycle (see People v Rainey, 122 AD3d 1314, 1314-
1315, lv denied 25 NY3d 1169; see generally People v Howard, 50 NY2d
583, 592, cert denied 449 US 1023). The testimony at the suppression
hearing established that the officer’s conduct was unobtrusive and did
not limit defendant’s freedom of movement (see Rainey, 122 AD3d at
1314-1315; People v Mack, 89 AD3d 864, 865, lv denied 18 NY3d 959).
The court thus properly determined that defendant’s subsequent act of
reaching into his waistband, an area known to the officer to be used
for concealing firearms, and appearing to discard an object therefrom
was not in response to any illegal police conduct, that the officer’s
ensuing pursuit of defendant when he began to flee was lawful, and
that the abandoned handgun was properly seized by the police (see
People v Bachiller, 93 AD3d 1196, 1197-1198, lv dismissed 19 NY3d 861;
Mack, 89 AD3d at 865; People v Foster, 302 AD2d 403, 404, lv denied
100 NY2d 581). Inasmuch as the officer’s conduct was lawful,
defendant’s statement to the police is not subject to suppression as
fruit of the poisonous tree (see People v Sims, 106 AD3d 1473, 1474,
appeal dismissed 22 NY3d 992).




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