An indictment has been filed against the defendant herein accusing him of one count of Assault in the Second Degree, in violation of Section 1120.05(3) of the Penal Law; and one count of Resisting Arrest, in violation of Section 205.30 of the Penal Law.

A hearing before this Court was held on February 13, 2007, pursuant to the defendant's request for a probable cause/Mapp hearing.

FINDINGS OF FACT

After due consideration of all the credible evidence adduced at the hearing this Court finds as follows:

On September 9, 2006, at approximately 1:00 p.m., New York State Police Trooper Samuel Spezio responded to an Ontario County Sheriff's Department "911" dispatch of a black, male subject leaving Eastview mall with property stolen from K-Mart. A [*2]description of the suspect was provided.

Trooper Spezio proceeded to the area and located a male matching the exact description walking along the shoulder of the highway.

Trooper Spezio approached the suspect and advised he that he was being detained regarding an investigation of stolen property, but was not under arrest. The suspect (defendant herein) was carrying a bag. The Trooper secured the bag from the defendant. At that point, the defendant shoved the Trooper and ran away. Trooper Spezio advised the defendant to stop because he was under arrest. The defendant continued to run and Trooper Spezio pursued the defendant on foot. Trooper Spezio had not had the opportunity to pat the defendant down to check for weapons and was, thus, unable to determine if the defendant had any weapons on his person.

During the ensuing pursuit, the trooper was able to grab hold of the defendant and a struggle ensued between the trooper and the defendant. During one of these struggles, the trooper was injured. The defendant was eventually subdued until back-up arrived. The defendant was then taken into custody.

The defendant contends that Trooper Spezio had no grounds to pursue and detain him, and seeks suppression as a result of this impermissible seizure of his person.

Initially, this Court finds that Trooper Spezio had an articulable basis justifying his initial approach of defendant. Moreover, the officer had a founded suspicion and thus properly invoked his common-law right of inquiry, entitling the officer to "interfere with [defendant] to the extent necessary to gain explanatory information, but short of a forcible seizure" (People v. De Bour, 40 NY2d 210m 223; see also, People v. Ralston, 303 AD2d 1014). In the instant case, the Trooper was in receipt of a 911 dispatch call advising him that a black male, matching the description of the defendant, was in possession of stolen property from the K-Mart store. Within minutes, Trooper Spezio observed a person matching the description, carrying a K-Mart bag, and walking down the highway just past Eastview Mall.

After his approach, the officer was justified in seizing the bag that the defendant was carrying. Given that the officer had a founded suspicion that criminality was afoot, justifying a common-law right of inquiry (see, People v. De Bour, supra), the officer was justified in seizing the bag for the limited purpose of insuring his safety(People v. Corbett, 258 AD2d 254; People v. Nials, 209 AD2d 324).

Since the Trooper was authorized to forcibly stop and detain the defendant, the officer was justified in pursuing and detaining the defendant (see, People v. Hill, 302 AD2d 958). [*3]

In any event, at the point that the defendant began his flight from Trooper Spezio, the Trooper acquired probable cause to arrest the defendant when the defendant shoved the Trooper. Therefore, the Trooper was justified in his pursuit of the defendant in order to effectuate the arrest.

Based upon the foregoing, the defendant's motion to suppress is hereby denied in all respects.

This shall constitute the decision and order of this Court.

Signed thisday of March, 2007, at Canandaigua, New York.

Craig J. Doran

County Court Judge