         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
8
KA 12-01414
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                             MEMORANDUM AND ORDER

JESSE F. JOHNSTON, DEFENDANT-RESPONDENT.


JASON L. COOK, DISTRICT ATTORNEY, PENN YAN, FOR APPELLANT.

MICHAEL A. JONES, JR., VICTOR, FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Yates County Court (W. Patrick
Falvey, J.), dated June 4, 2012. The order granted the motion of
defendant to suppress certain evidence.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Yates County Court for further
proceedings.

     Memorandum: The People appeal from an order granting that part
of defendant’s omnibus motion to suppress evidence, i.e., a weapon and
oral statements made by defendant to an investigator employed by the
Sheriff’s Department. County Court suppressed the weapon on the
ground that, because the initial lawful encounter between defendant
and the Sheriff’s Deputy was improperly elevated to a level two
encounter under People v De Bour (40 NY2d 210, 233), the ensuing
search of defendant was not warranted, and the statements made by
defendant were the fruit of an unlawful arrest. We agree with the
People that the court erred in suppressing the weapon and statements
on those grounds. The testimony at the suppression hearing
established that a Sheriff’s Deputy was on patrol in a marked vehicle
at approximately 2:30 p.m. when he observed defendant and his
codefendant walking from a residential driveway apron toward a vehicle
in a nearby public parking lot used in conjunction with a State-owned
recreation area. The officer explained that there had been an
increased number of daytime residential burglaries and that the two
men were walking from private property to a vehicle parked in a public
parking area. The officer also explained that the men were dressed
“pretty heavy” for the mid-70-degree day, that their dress was
uncharacteristic of the hikers and mountain bicyclists who normally
visited the area, and that marihuana was often harvested during that
time of year. As the court properly determined, the People met their
burden of establishing that the officer had an articulable reason for
approaching defendant as he and the codefendant were about to enter
their vehicle in the public parking lot and asking the basic,
                                 -2-                             8
                                                         KA 12-01414

nonthreatening question, “what’s up guys?” (see People v Hollman, 79
NY2d 181, 185; People v Rodriguez, 82 AD3d 1614, 1615, lv denied 17
NY3d 800). Indeed, such “questions need be supported only by an
objective credible reason not necessarily indicative of criminality”
(Hollman, 79 NY2d at 185).

     Upon the officer’s approach, defendant began to slide down the
side of the vehicle away from the officer and the codefendant placed
his hands in the pocket of his hooded sweatshirt. The officer
directed codefendant to remove his hands from his pocket and when
codefendant raised his hands, the officer observed the outline of a
handgun. Thus, the officer was thereafter justified in drawing his
service weapon and ordering defendant and the codefendant to the
ground inasmuch as he “had a reasonable basis for fearing for his
safety and was not required to ‘await the glint of steel’ ” (People v
Stokes, 262 AD2d 975, 976, lv denied 93 NY2d 1028, quoting People v
Benjamin, 51 NY2d 267, 271). Inasmuch as the officer had reason to
believe that defendant was armed, he was justified in handcuffing him
and frisking him for weapons to ensure his own safety (see People v
Fagan, 98 AD3d 1270, 1271; see also People v Allen, 73 NY2d 378, 380).
During the course of that frisk, the officer discovered a loaded
revolver in defendant’s waistband. Under the circumstances presented
here, we conclude that the court erred in suppressing the weapon and
thus also erred in suppressing defendant’s subsequent statements to an
investigator as the fruit of the allegedly illegal encounter with the
Deputy. We note, however, that the court did not otherwise address
any arguments advanced by defendant in support of the suppression of
those statements. Because “the only issues that we may consider on
this appeal are those that ‘may have adversely affected the
appellant’ ” (People v Schrock, 99 AD3d 1196, 1197, quoting CPL 470.15
[1]; see People v Concepcion, 17 NY3d 192, 194-195), we hold the case,
reserve decision, and remit the matter to County Court to rule on any
other arguments raised by defendant in support of suppression of the
statements.




Entered:   February 8, 2013                    Frances E. Cafarell
                                               Clerk of the Court
