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

344
KA 11-01224
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JEROME TROTT, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JESSAMINE I. JACKSON
OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID PANEPINTO OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered May 9, 2011. 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 modified on the law by vacating the period of postrelease
supervision and as modified the judgment is affirmed, and the matter
is remitted to Supreme Court, Erie County, for further proceedings in
accordance with the following Memorandum: Defendant appeals 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 Supreme Court erred in denying his motion to suppress
certain physical evidence and his statements to the police because he
was subjected to an unlawful seizure. We reject that contention
inasmuch as the evidence at the suppression hearing established that
the police officers who arrested defendant had “a reasonable
suspicion” that defendant committed, was committing or was about to
commit a felony or misdemeanor (People v De Bour, 40 NY2d 210, 223).
Specifically, a confidential informant who had supplied reliable
information to the police on approximately 40 previous occasions
described defendant and his whereabouts to a police officer and
informed him that defendant was carrying a loaded weapon holstered to
his chest. The police officer set up surveillance in the area, saw
defendant within seconds and then called another police officer to
serve as backup. The two officers drove in one vehicle to defendant’s
location without activating the vehicle’s lights or sirens. Upon
approaching defendant, the officers noticed defendant turning his back
on them, acting in a nervous manner and reaching for his chest. When
defendant ignored repeated requests from the officers to show his
hands, the officers asked defendant if he had something in his
possession that was causing him to act that way. Defendant responded
                                 -2-                           344
                                                         KA 11-01224

that he had his mother’s gun. The officers secured the gun, placed
defendant under arrest and advised him of his Miranda rights.
Throughout the encounter, the officers had their guns holstered and
they did not pat down defendant or handcuff him until he admitted to
possessing a gun. We conclude that those circumstances did not
subject defendant to an unlawful seizure (see People v Jenkins, 209
AD2d 164, 165; see generally People v Bora, 83 NY2d 531, 534-536).

     Defendant’s contention that the court erred in refusing to
suppress his statements to the officers because he was not advised of
his Miranda rights is without merit. Defendant was not arrested until
he told the officers he had a gun and there was no requirement that he
be read his Miranda rights before that point (see People v Whyte, 47
AD3d 852, 853; see also People v Jones, 118 AD2d 86, 89, affd 69 NY2d
853). Defendant failed to preserve for our review his further
contention that the testimony of the officers was tailored to overcome
constitutional objections (see People v Watson, 90 AD3d 1666, 1667, lv
denied 19 NY3d 868), and we decline to exercise our power to review
that contention as a matter of discretion in the interest of justice
(see CPL 470.15 [6] [a]).

     We agree with defendant, however, that the period of postrelease
supervision must be vacated. The court’s statement that “this
determinate sentence automatically includes a period of postrelease
supervision of five years” reflects that the court misapprehended that
it had discretion to sentence defendant to less than five years of
postrelease supervision (see People v Britt, 67 AD3d 1023, 1024, lv
denied 14 NY3d 770). We therefore modify the judgment by vacating the
period of postrelease supervision, and we remit the matter to Supreme
Court for “reconsideration of the length of that period and the
reimposition of a period of postrelease supervision thereafter” (id.).




Entered:   April 26, 2013                       Frances E. Cafarell
                                                Clerk of the Court
