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

1225
KA 13-00046
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KENDRELL A. GADLEY, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG,
JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Kenneth F. Case,
J.), rendered December 18, 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 denying his suppression motion. We reject that contention. The
undisputed evidence at the suppression hearing demonstrated that the
arresting officer and his partner were on routine patrol in Buffalo
when they observed two men standing in front of a vacant building on
the corner of Fillmore Avenue and Box Street. One of the two men was
defendant. Knowing that there had been a number of burglaries in the
area, the arresting officer stopped his marked police vehicle in front
of the building and asked the two men what they were doing. In
response, defendant said that they were “about to smoke.” As he made
that statement, defendant showed the officer a handful of Dutch
Masters cigars, which were individually wrapped in plastic and
unopened. The officer then asked defendant what they were about to
smoke, whereupon the man standing next to defendant said, “Some weed.”
When the officer opened his car door to approach the men, defendant
fled on foot. The officer pursued defendant and, while doing so,
observed him discard a handgun. The officer apprehended defendant and
determined that the weapon defendant had discarded was a loaded .38
caliber revolver.

     Although defendant correctly concedes that the officer’s initial
approach and inquiry of him was lawful, he contends that the officer’s
                                 -2-                          1225
                                                         KA 13-00046

pursuit of him was unlawful inasmuch as the officer lacked reasonable
suspicion to believe that he had committed or was about to commit a
crime. We reject that contention. It is well settled that a
“defendant’s flight in response to an approach by the police, combined
with other specific circumstances indicating that [he] may be engaged
in criminal activity, may give rise to reasonable suspicion, the
necessary predicate for police pursuit” (People v Sierra, 83 NY2d 928,
929; see People v Price, 109 AD3d 1189, 1190, lv denied 22 NY3d 1043).
Here, defendant’s flight, which commenced immediately after his
companion informed the officer that they were about to smoke “[s]ome
weed,” furnished the requisite reasonable suspicion to believe that
defendant unlawfully possessed marihuana in violation of Penal Law §
221.05, thereby justifying the subsequent police pursuit (cf. People v
Cady, 103 AD3d 1155, 1156; see generally People v Rainey, 110 AD3d
1464, 1465; People v McKinley, 101 AD3d 1747, 1748-1749, lv denied 21
NY3d 1017).

     Defendant failed to preserve for our review his alternative
contention that “the simple possession of marijuana, even in public,
is not a crime,” and that the police cannot pursue someone suspected
of committing a mere violation (see generally CPL 470.05 [2]). In any
event, the fact that a perpetrator’s conduct may have constituted only
a violation, as opposed to a misdemeanor or felony, is not legally
significant in determining whether a police intrusion was lawful (see
e.g. People v Mack, 49 AD3d 1291, 1292, lv denied 10 NY3d 866; People
v Hewitt, 247 AD2d 552, 553, lv denied 92 NY2d 880, reconsideration
denied 92 NY2d 926). We thus conclude that the court properly denied
defendant’s motion to suppress the weapon he discarded while being
pursued by the officer.




Entered:   November 21, 2014                   Frances E. Cafarell
                                               Clerk of the Court
