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

1139
KA 13-01470
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KEVIN BINET, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN MCDERMOTT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (ROMANA A. LAVALAS
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Thomas J.
Miller, J.), rendered August 1, 2013. 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 motion to suppress the gun seized from his person
and his pre- and postarrest statements to police. We reject that
contention. We conclude that the officers were authorized to stop
defendant, who was walking in the street, based upon their observation
of his violation of Vehicle and Traffic Law § 1156 (a) and (b),
entitled “Pedestrians on roadways” (see People v Robinson, 97 NY2d
341, 349-356; see also People v Ellis, 62 NY2d 393, 396; People v
Sobotker, 43 NY2d 559, 563-564). Upon approaching defendant, one of
the officers observed that defendant was generally nervous and
moreover was engaging in suspicious conduct by repeatedly placing his
hands into his pockets despite the officer’s repeated requests that he
take his hands out of his pockets. Those observations, in conjunction
with the fact that the encounter took place in a known high-crime
area, provided the officer with at least a “ ‘founded suspicion that
criminal activity was afoot,’ ” thereby warranting the officer in
asking defendant whether he had any illegal or dangerous item, i.e., a
weapon, on his person (People v Robinson, 278 AD2d 808, 809, lv denied
96 NY2d 787; see People v Hensen, 21 AD3d 172, 174-176, lv denied 5
NY3d 828; see also People v Sims, 106 AD3d 1473, 1473-1474, appeal
dismissed 22 NY3d 992). We additionally conclude that defendant’s
statement to the officer that he had a handgun in his pocket
                                 -2-                          1139
                                                         KA 13-01470

established a reasonable suspicion of a threat to the officer’s
safety, and that the officer was justified in reaching into that
pocket and removing the gun (see Hensen, 21 AD3d at 174-176; Robinson,
278 AD2d at 809). Finally, we conclude that defendant’s possession of
the gun gave the officer probable cause to arrest him and subsequently
question him at the police station (see People v Niles, 237 AD2d 537,
538, lv denied 90 NY2d 861; see also People v Hightower, 261 AD2d 871,
871-872, lv denied 93 NY2d 971).

     Insofar as defendant challenges the severity of the period of
postrelease supervision, we decline to exercise our power to modify
that part of the sentence as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [b]).




Entered:   February 3, 2017                     Frances E. Cafarell
                                                Clerk of the Court
