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

7
KA 12-01345
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

HIKEME WILLIAMS, 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 (Joseph E.
Fahey, J.), rendered August 1, 2011. The judgment convicted
defendant, upon his plea of guilty, of menacing a police officer or
peace officer, criminal possession of a weapon in the second degree,
criminal possession of a weapon in the third degree and resisting
arrest.

     It is hereby ORDERED that said appeal from the judgment insofar
as it imposed sentence on the conviction of criminal possession of a
weapon in the third degree is unanimously dismissed and the judgment
is affirmed.

     Memorandum: Defendant appeals from a judgment that convicted
him, upon his plea of guilty, of menacing a police officer or peace
officer (Penal Law § 120.18), criminal possession of a weapon in the
second degree (§ 265.03 [3]), criminal possession of a weapon in the
third degree (§ 265.02 [3]), and resisting arrest (§ 205.30). We
agree with defendant that “the waiver of the right to appeal is
invalid because the minimal inquiry made by County Court was
insufficient to establish that the court engage[d] the defendant in an
adequate colloquy to ensure that the waiver of the right to appeal was
a knowing and voluntary choice” (People v Jones, 107 AD3d 1589, 1589,
lv denied 21 NY3d 1075 [internal quotation marks omitted]). Although
the invalid waiver of the right to appeal thus does not encompass
defendant’s further contention that the court erred in refusing to
suppress the weapon and defendant’s statements to the police as fruit
of the poisonous tree, we nevertheless reject that contention.

     The evidence at the suppression hearing established that, on the
date of the incident, police officers were dispatched to 322 Hatch
Street at 6:12 a.m. based on a 911 call reporting “a suspicious person
with a weapon.” The suspect was described as a black male, wearing a
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                                                         KA 12-01345

black, hooded sweatshirt and a white “do rag,” who was in possession
of a silver handgun. As the responding officer turned his patrol
vehicle onto Hatch Street, he received another dispatch stating that
“the suspect was still in possession of the handgun and standing on
the front porch of 322 Hatch Street.” When the officer arrived at 322
Hatch Street, he observed a black male, later identified as defendant,
wearing a black, hooded sweatshirt and a white “do rag.” Defendant
was the only person in the vicinity, and he was standing only 15 feet
away from the porch of 322 Hatch Street. The responding officer
exited the patrol vehicle and shielded himself with the door. At that
point, defendant was standing at a 45-degree, “bladed” angle toward
the officer and, although his left hand was visible, his right hand
“was concealed in the waistband of his pants or the front of his
sweatshirt.” The officer “ordered [defendant] to remove his right
hand and show [the officer] his right hand and lay on the ground.”
When defendant refused, the officer unholstered his firearm, keeping
it down at his side, and again ordered defendant to show his hands.
Defendant refused to do so and fled, prompting the officer to pursue
him. After defendant lost his balance and fell, a struggle ensued,
during which defendant removed a handgun from his waistband and
pointed it at the officer’s midsection. The officer was able to
disarm defendant, at which time defendant was arrested. Following his
arrest and the issuance of Miranda warnings, defendant made
inculpatory statements, and the police identified the woman who had
called 911.

     The court refused to suppress the weapon or the statements,
finding that the caller was “[a]n identified citizen informant” and
thus provided the responding officer with probable cause to arrest
defendant. The court also found that, even if the facts and
circumstances did not amount to probable cause, the responding officer
was justified in forcibly detaining defendant based on his reasonable
suspicion that defendant had a gun and, also, based on the officer’s
need to “take reasonable self-protective measures to ensure his safety
and neutralize the threat of physical harm.”

     On appeal, defendant contends that the court erred in determining
that the caller was an identified citizen informant and that the
responding officer was justified in forcibly detaining him when the
officer ordered defendant to show his hands and lie down on the
ground. The People contend that defendant’s challenge to the nature
of the caller is not preserved for our review, but we reject that
contention inasmuch as the court “ ‘expressly decided the question
raised on appeal,’ thus preserving the issue for review” (People v
Smith, 22 NY3d 462, 465, quoting CPL 470.05 [2]; see People v Riddick,
70 AD3d 1421, 1423, lv denied 14 NY3d 844). Although we agree with
defendant that the 911 caller was an anonymous caller at the time the
responding officer forcibly detained defendant (see Navarette v
California, ___ US___, ___, 134 S Ct 1683, 1687-1689; cf. People v Van
Every, 1 AD3d 977, 978, lv denied 1 NY3d 602), and that “defendant was
seized within the meaning of the Fourth Amendment” when the responding
officer ordered him to show his hands and lie down on the ground
(People v Gonzales, 86 AD2d 634, 635), we nevertheless conclude that
the officer was justified in forcibly detaining defendant “based on
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                                                         KA 12-01345

the contents of a 911 call from an anonymous individual and the
confirmatory observations of the police” (People v Argyris, 24 NY3d
1138, 1140, rearg denied 24 NY3d 1211, cert denied ___ US ___ [Jan.
11, 2016]; see People v Williams, 126 AD3d 1304, 1305, lv denied 25
NY3d 1209; cf. People v Moore, 6 NY3d 496, 499-500).

     Although “a radioed tip may have almost no legal significance
when it stands alone, . . . when considered in conjunction with other
supportive facts, it may thus collectively, although not
independently, support a reasonable suspicion justifying intrusive
police action” (People v Benjamin, 51 NY2d 267, 270). Here, as in
Benjamin, that “additional support can, as well, be provided by
factors rapidly developing or observed at the scene” (id.). The
evidence at the hearing established that “ ‘the report of the 911
caller was based on the contemporaneous observation of conduct that
was not concealed’ ” (Williams, 126 AD3d at 1305; see Argyris, 99 AD3d
at 810). Upon the officer’s arrival, defendant was positioned at a
bladed angle toward the officer with his hand in his waistband or
sweatshirt pocket, “ ‘common sanctuar[ies] for weapons’ ” (People v
Smith, 134 AD3d 1453, ___, quoting People v Burnett, 126 AD3d 1491,
1494). In our view, this case is indistinguishable from Benjamin.

     “A police officer directed to a location by a general radio call
cannot reasonably be instructed to close his eyes to reality--neither
the officer nor justice should be that blind. The officer was
rightfully and dutifully on the scene and could not ignore possible
indications of criminality, nor is there any logical reason for him to
reject the natural mental connection between newly encountered facts
and the substance of the radio message. More importantly, there
certainly is no justification for holding that an officer in such a
situation cannot take note of a significant occurrence indicating a
possible threat to his life, merely because the call which directed
him to the scene was in and of itself an insufficient predicate for
intrusive action against a particular person” (Benjamin, 51 NY2d at
271). In accordance with Court of Appeals’ precedent, we conclude
that “it would be unrealistic to require [the responding officer], who
had been told that [a] gunm[a]n might be present, to assume the risk
that the defendant’s conduct was in fact innocuous or innocent. Such
an assumption would be at odds with his reasonably acquired belief
that he was in danger and his constitutionally authorized action . . .
It would, indeed, be absurd to suggest that a police officer has to
await the glint of steel before he can act to preserve his safety”
(id.; see People v Allen, 73 NY2d 378, 380; cf. Burnett, 126 AD3d at
1494).

     “Given the extremely short period of time between the report of
[the man with a gun] and the arrival of the [responding officer] on
the scene, defendant’s presence [in proximity to the porch] and the
absence of any other individual in the vicinity, the [officer was]
justified in forcibly detaining defendant in order to quickly confirm
or dispel [his] reasonable suspicion of defendant’s possible
[possession of a weapon]” (People v Stroman, 107 AD3d 1023, 1024, lv
denied 21 NY3d 1046; see Benjamin, 51 NY2d at 270). We thus conclude
that the court properly refused to suppress the weapon and defendant’s
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                                                         KA 12-01345

ensuing statements.

     In light of defendant’s resentencing on the conviction of
criminal possession of a weapon in the third degree, we do not
consider his challenge to the severity of the original sentence
imposed on that count, and we dismiss the appeal from the judgment to
that extent (see People v Richardson, 128 AD3d 1377, 1379, lv denied
25 NY3d 1206; People v Haywood, 203 AD2d 966, 966, lv denied 83 NY2d
967). Contrary to the final contention of defendant, the bargained-
for sentence on the remaining counts is not unduly harsh and severe.




Entered:   February 5, 2016                     Frances E. Cafarell
                                                Clerk of the Court
