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

311
KA 11-02069
PRESENT: SCUDDER, P.J., SMITH, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                             MEMORANDUM AND ORDER

DESMOND JOHNSON, DEFENDANT-RESPONDENT.


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

ANDREW C. LOTEMPIO, BUFFALO, FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County
(Christopher J. Burns, J.), dated June 16, 2011. The order granted
the motion of the People for leave to reargue and, upon reargument,
adhered to the prior order granting that part of defendant’s motion
seeking to suppress a handgun.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law, that part of the motion to suppress
the handgun is denied, and the matter is remitted to Supreme Court,
Erie County, for further proceedings on the indictment.

     Memorandum: Upon the motion of defendant seeking, inter alia, to
suppress a handgun seized by police following an allegedly unlawful
pursuit of defendant, Supreme Court granted that part of the motion to
suppress the handgun. Following entry of the order granting that part
of defendant’s motion, the People moved for leave to reargue with
respect thereto. The court granted the People’s motion insofar as it
sought leave to reargue and adhered to its prior determination. The
People appealed from the original order and failed to appeal from the
subsequent order entered on reargument, which superseded the original
order (see Loafin’ Tree Rest. v Pardi [appeal No. 1], 162 AD2d 985).
We exercise our discretion to treat the notice of appeal as one taken
from the subsequent order (see CPLR 5520 [c]; see e.g. Kanter v Pieri,
11 AD3d 912, 912), and now reverse.

     The People do not contend that the court erred in determining
that the pursuit of defendant by the police was unlawful (see
generally People v Holmes, 81 NY2d 1056, 1057-1058; People v De Bour,
40 NY2d 210, 223). They do contend, however, and we agree, that the
unlawful pursuit of defendant does not require suppression of the
handgun. The undisputed testimony established that defendant
“abandoned the [hand]gun . . . before any contact with police, and
thus it cannot be said that the abandonment was ‘coerced or
                                 -2-                          311
                                                        KA 11-02069

precipitated by unlawful police activity’ ” (People v Stevenson, 273
AD2d 826, 827, quoting People v Ramirez-Portoreal, 88 NY2d 99, 110;
see generally People v Boodle, 47 NY2d 398, 404-405, cert denied 444
US 969). The court therefore erred in rejecting the People’s
contention that the handgun was abandoned and in suppressing it (see
e.g. Stevenson, 273 AD2d at 827; see generally Ramirez-Portoreal, 88
NY2d at 110; Boodle, 47 NY2d at 402-404).




Entered:   March 23, 2012                      Frances E. Cafarell
                                               Clerk of the Court
