MEMORANDUM
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS : CRIMINAL TERM : PART K-8
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THE PEOPLE OF THE STATE OF NEW YORK : BY: CHARLES R. KOHM, J.
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-against- : DATE:
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LEE JESSUP, : INDICT. NO. 0282/99
:
Defendant. :
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Defendant is charged with three counts of criminal possession of a weapon in the third degree. On July 28, 1999, a Mapp/Dunaway hearing was held on defendant's motion to suppress physical evidence. The sole witness testifying at the hearing was Police Officer Cynthia Scariati. This Court found Officer Scariati's testimony credible. The following are the findings of fact and conclusions of law made by this court as a result of the hearing:
On January 20, 1999, at approximately 10:30 P.M., Officer Scariati was on motor patrol with her partner when they received an emergency radio run of several male blacks, one with a gun in his waistband, at a given location. The man with the weapon was described as being short and wearing dark clothing.
Officer Scariati and her partner immediately proceeded to the location in their marked vehicle, without activating turret lights or siren. They exited their vehicle. Drawing their weapons, the officers started to come up behind a group of male blacks walking in front of the given location. The attention of the group had been drawn by the sirens of several other police vehicles responding to the radio run from the opposite direction of Officer Scariati and her partner. As a result, the two officers had not been observed.
While the other police officers were still about ten car lengths away, Officer Scariati observed one male black leave the others, walk to a line of cars parked in the street, bend down and drop something. Officer Scariati was then about two to three car lengths away from where the object was dropped. She heard a metallic sound as the object hit the ground. After discarding the object, the male started to rejoin the group. He still had not seen Officer Scariati.
Officer Scariati immediately proceeded to where the object had been dropped. Meanwhile, she had holstered her weapon upon seeing the other officers begin to approach the group. Officer Scariati recovered a loaded gun from the lip of the curb. At approximately the same time, the other officers had reached and detained the entire group of males, which now included the man who had discarded the gun. That man, the defendant, was then arrested. When arrested, defendant was wearing a dark blue sweatshirt; he is also short.
Judicial review of the legality of police conduct must weigh the interference engendered by such conduct against the precipitating and attendant conditions known to the police as the encounter enfolds (see, People v Batista, 88 NY2d 650; People v Salaman, 71 NY2d 869; People v Leung, 68 NY2d 734). Here, Officer Scariati and her partner were duty bound to investigate the radio run of a man with a gun (People v Salaman, supra, at 870; People v Benjamin, 51 NY2d 267, 270). Upon arriving at the given location, they wisely took advantage of the fact that the attention of the group of males was diverted in order to observe them without themselves being observed. None of the officers limited defendant's freedom of movement or coerced or intimidated him prior to his discarding of the gun (see, People v Thornton, 238 AD2d 33). Defendant's decision to discard the weapon upon hearing and, possibly, seeing police personnel approaching was not a "spontaneous reaction to a sudden and unexpected [police] confrontation" (People v Boodle, 47 NY2d 398, 404, cert denied 444 US 969) but rather an independent and calculated decision to hide evidence. The decision was in no way precipitated by illegal police activity (see, People v Ramirez-Portoreal, 88 NY2d 99; People v Martinez, 80 NY2d 444; People v Thornton, supra; People v Jaime G., 208 AD2d 382). As the police conduct which precipitated defendant's act was lawful, recovery of the discarded weapon was also lawful (People v Martinez, supra; People v Leung, 68 NY2d 734; People v Braithwaite, 172 AD2d 548, lv denied 78 NY2d 920). Of course, once the gun was recovered there existed probable cause for defendant's arrest (see People v Leung, supra; People v Thorton, supra; People v Jackson, 205 AD2d 640, lv denied 84 NY2d 827; People v Cox, 210 AD2d 497, lv denied 85 NY2d 907).
Accordingly, defendant's motion to suppress physical evidence is denied in all respects.
Order entered accordingly.
The clerk of the court is directed to mail copies of this decision and order to the attorney for the defendant and to the District Attorney.
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CHARLES ROBERT KOHM, J.S.C.