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

420
KA 14-01881
PRESENT: WHALEN, P.J., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KALIL T. WALKER, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KELLY CHRISTINE WOLFORD
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (Alex
R. Renzi, J.), rendered June 25, 2014. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree and assault 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 a plea
of guilty of criminal possession of a weapon in the second degree
(Penal Law § 265.03 [3]) and assault in the second degree (§ 120.05
[3]), defendant contends that Supreme Court erred in refusing to
suppress evidence resulting from an unlawful pursuit. We reject that
contention.

     While patrolling in a high-crime area known for gang activity,
drugs and weapons, officers effectuated a traffic stop of a vehicle in
which defendant was a passenger. Defendant immediately exited the
vehicle, positioning his body so that his back was to the officers and
they could not observe his right hand. When directed to return to the
vehicle, defendant refused and, instead, turned to face the police
officers. At that moment, the officers observed that defendant had
his right hand at his waistband. The officers “recognized that as a
possible threat” because their training and experiences had taught
them that individuals “keep their weapons tucked inside their
waistband right where [defendant] was reaching.” Notably, there was
no innocuous explanation for such hand positioning because defendant’s
pants were not “sagging or being anywhere other than at his waist.”
One of the officers drew his weapon, at which point defendant
immediately fled. During the ensuing chase, the officers saw
defendant drop a “dark heavy object” that was later recovered and
identified as a firearm.
                                 -2-                           420
                                                         KA 14-01881

     Contrary to defendant’s contention, the officers’ conduct “was
justified in its inception and at every subsequent stage of the
encounter” (People v Nicodemus, 247 AD2d 833, 835, lv denied 92 NY2d
858). “[I]t is well settled that the police may pursue a fleeing
defendant if they have a reasonable suspicion that defendant has
committed or is about to commit a crime . . . While flight alone is
insufficient to justify pursuit, defendant’s flight in response to an
approach by the police, combined with other specific circumstances
indicating that the suspect may be engaged in criminal activity, may
give rise to reasonable suspicion, the necessary predicate for police
pursuit” (People v Rainey, 110 AD3d 1464, 1465 [internal quotation
marks omitted]; see People v Sierra, 83 NY2d 928, 929). “In
determining whether a pursuit was justified by reasonable suspicion,
the emphasis should not be narrowly focused on . . . any . . . single
factor, but [rather should be based] on an evaluation of the totality
of circumstances, which takes into account the realities of everyday
life unfolding before a trained officer” (People v Bachiller, 93 AD3d
1196, 1197, lv dismissed 19 NY3d 861 [internal quotation marks
omitted]).

     Here, we conclude that defendant’s positioning and his refusal to
comply with the officer’s request to return to the vehicle, while not
alone indicative of criminal behavior, could be “considered in
conjunction with other attendant circumstances” to establish the
requisite reasonable suspicion of criminal activity (People v
Martinez, 80 NY2d 444, 448). In our view, once defendant refused the
officer’s request to return to the vehicle and turned toward the
officers, the officers could “reasonably suspect[] that defendant was
armed and posed a threat to their safety because his actions were
directed to the area of his waistband, which was concealed from their
view” (People v Fagan, 98 AD3d 1270, 1271, lv denied 20 NY3d 1061,
cert denied ___ US ___, 134 S Ct 262). The officer who drew his
weapon was justified in doing so out of a concern for his own safety
(see People v James, 272 AD2d 75, 75, lv denied 95 NY2d 866,
reconsideration denied 95 NY2d 965; People v Wright, 100 AD2d 523,
525; see generally People v Benjamin, 51 NY2d 267, 271). We thus
conclude that defendant’s flight, “in conjunction with the attendant
circumstances, gave rise to the requisite reasonable suspicion
justifying police pursuit” (People v Brown, 67 AD3d 1439, 1440, lv
denied 14 NY3d 798; see Bachiller, 93 AD3d at 1197-1198; cf. People v
Robbins, 83 NY2d 928, 930).

     Inasmuch as “the pursuit of the defendant was justified, the gun
he discarded during the pursuit was not subject to suppression as the
product of unlawful police conduct” (People v Williams, 120 AD3d 1441,
1442, lv dismissed 24 NY3d 1089; see People v Gayden, 126 AD3d 1518,
1518-1519, affd 28 NY3d 1035; People v Feliciano, 140 AD3d 1776, 1777,
lv denied 28 NY3d 1027). Moreover, for the same reason, defendant’s
statements to the police are “not subject to suppression as fruit of
the poisonous tree” (Feliciano, 140 AD3d at 1777; see People v Sims,
                                 -3-                          420
                                                        KA 14-01881

106 AD3d 1473, 1474, appeal dismissed 22 NY3d 992).




Entered:   April 28, 2017                      Frances E. Cafarell
                                               Clerk of the Court
