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

943
KA 09-02340
PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TERRANCE C. RAINEY, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered March 18, 2009. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a controlled
substance in the third degree, criminal possession of a controlled
substance in the fifth degree and unlawful possession of marihuana.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Monroe County Court for further
proceedings in accordance with the following Memorandum: Defendant
appeals from a judgment convicting him upon a jury verdict of criminal
possession of a controlled substance in the third degree (Penal Law §
220.16 [1]), criminal possession of a controlled substance in the
fifth degree (§ 220.06 [5]), and unlawful possession of marihuana (§
221.05).

     Defendant contends that County Court erred in refusing to
suppress evidence of his possession of drugs and his statement to the
police inasmuch as the evidence and the statement were obtained as the
result of an illegal pursuit by the police. At the suppression
hearing, the People presented evidence that three police officers were
on patrol near a multi-unit apartment building in Rochester at
approximately 1:00 a.m. when they were approached by an unidentified
male who told them that narcotics sales were occurring on the fourth
floor. The officers entered the building and began climbing the
stairs. When the officers reached the third floor, they saw a male,
later identified as defendant, running down the fire escape.
Defendant reentered the building on the second floor before exiting
the building through the front door. The officers followed defendant
as he jogged away from the building. After defendant jumped over a
wall into a parking lot next to the building, he dropped a baggie
containing drugs on the ground.
                                 -2-                           943
                                                         KA 09-02340

     “[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’ ” (People v Cady, 103 AD3d
1155, 1156; see People v Martinez, 80 NY2d 444, 446; People v Riddick,
70 AD3d 1421, 1422, lv denied 14 NY3d 844). 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 Sierra, 83 NY2d 928, 929 [emphasis added]; see
Cady, 103 AD3d at 1156). “Although ‘a defendant who challenges the
legality of a search and seizure has the burden of proving illegality,
the People are nevertheless put to the burden of going forward to show
the legality of the police conduct in the first instance’ ” (People v
Noah, 107 AD3d 1411, 1413; see People v Lazcano, 66 AD3d 1474, 1475,
lv denied 13 NY3d 940). Furthermore, a defendant’s attempt to discard
evidence generally constitutes “an independent act involving a
calculated risk” and, based on that act of abandonment, a defendant
“los[es] his [or her] right to object to the [police seizing the
evidence]” (People v Holland, 221 AD2d 947, 948, lv denied 87 NY2d 922
[internal quotation marks omitted]). If, however, a defendant
abandons evidence “in response to [an] illegal pursuit,” it must be
suppressed (Sierra, 83 NY2d at 930). Here, the court refused to
suppress the evidence and the statement on the ground that the police
had probable cause to arrest defendant, but the court did not rule on
the threshold issues whether the police engaged in a pursuit and, if
so, whether that pursuit was legal, i.e., supported by a reasonable
suspicion that defendant had committed or was about to commit a crime
(see id. at 929). If the pursuit was legal, then defendant abandoned
the drugs as an “independent act involving a calculated risk”
(Holland, 221 AD2d at 948), but if defendant abandoned the drugs “in
response to [an] illegal pursuit” (Sierra, 83 NY2d at 930), then the
drugs must be suppressed. Inasmuch as “[w]e have no power to ‘review
issues either decided in an appellant’s favor, or not ruled upon, by
the trial court’ ” (People v Coles, 105 AD3d 1360, 1363, quoting
People v Concepcion, 17 NY3d 192, 195), we cannot rule on those issues
in the first instance. We therefore hold the case, reserve decision
and remit the matter to County Court to rule on those issues based on
the evidence presented at the suppression hearing.




Entered:   October 4, 2013                     Frances E. Cafarell
                                               Clerk of the Court
