The defendants are each charged with the following: one (1) count of violating Penal Law §265.03(3), Criminal Possession of a Weapon in the Second Degree as a class C felony and one (1) count of violating Penal Law §265.02(1), Criminal Possession of a Weapon in the Third Degree as a class D felony.

On November 30, 2009, upon written stipulation by the parties, this Court conducted a Huntley, Mapp, and Dunaway hearing. (See People v. Huntley, 15 NY2d 72 [1965]; Mapp v. Ohio, 367 US 643, 81 SCt 1684, 6 LEd2d 1081 [1961]; and Dunaway v. New York, 442 US 200, 99 SCt 2248, 60 LEd2d 824 [1979]). The Huntley hearing pertained to one statement allegedly made by defendant Woods to the Police after his arrest, namely: "The gun wasn't mine, it was the dude's in the backseat." The Mapp portion of the hearing was regarding a handgun allegedly recovered on the street next to the rear of the car which the defendants occupied.

The People called one witness at the hearing, Police Officer Eugene Este of the Hempstead Police Department. The defendants did not call any witnesses. Based on the testimony of the Police Officer, this Court makes the following findings of fact and conclusions of law:

Officer Este is a fourteen year veteran of the Hempstead Police Department. This Court finds the testimony of Officer Este to be credible.

On September 14, 2009, at approximately 12:37 a.m., Officer Este was in uniform, in a marked Police car, patrolling the Village of Hempstead, Nassau County, New York. As he was traveling westbound on Fulton Avenue, Officer Este heard gunshots in the vicinity of the McHebes Restaurant. A man immediately ran up to Officer Este's Police vehicle and told him that there was a shooting in the rear of McHebes Restaurant. Officer Este made a left turn and proceeded a short distance to the McHebes Restaurant parking lot. Officer Este looked into the parking lot and observed two cars, a Honda and an Oldsmobile. The Honda was already in motion and was heading [*2]towards the parking lot exit. As Officer Este stepped out of his car, he saw two men standing outside of the Oldsmobile.^[FN1] He ordered the men to "freeze." The two men disregarded Officer Este's command, got into the Oldsmobile and the vehicle sped off passed Officer Este. Officer Este returned to his Police vehicle and pursued the Oldsmobile with his emergency Police lights and siren activated. Officer Este stated that he decided to pursue the Oldsmobile because it was the vehicle closest to him, and the occupants had failed to stop when ordered to do so. When questioned on cross-examination as to his reasoning, Officer Este indicated that he had a hunch about the Oldsmobile. Officer Este testified that the Oldsmobile did not pull over in response to his emergency Police lights and siren. Officer Este described chasing the vehicle as it wove in and out of traffic at speeds of up to fifty miles per hour. Eventually, Officer Este and another Police vehicle stopped the Oldsmobile by cutting it off.

Officer Este indicated that other Police Officers immediately responded to the scene of the car stop. Officer Este got out of his vehicle, drew his weapon, and required the driver of the vehicle (who was identified in Court as defendant Woods) to exit the vehicle with his hands raised. Officer Este testified that there were also two passengers in the car, one in the front passenger seat and one in the rear passenger side seat. Officer Este patted down defendant Woods and handcuffed him for Police Officer safety. As defendant Woods was being handcuffed, the front passenger (who was identified in Court as defendant Trice) exited the vehicle, and then the rear passenger (who was identified in Court as defendant Smith) exited the vehicle, both without being instructed to do so by any of the Police Officers. When the rear passenger exited the vehicle, Officer Este described hearing the sound of a metallic object hitting the ground. Officer Este testified that the sound was unmistakably that of a gun hitting the ground. The two passengers were patted down, handcuffed, and placed in the rear of separate Police cars by other Police Officers. After Officer Este placed defendant Woods in the rear of his Police car, he went to search the area surrounding the rear passenger side of the Oldsmobile. Officer Este found a handgun lying on the street near the rear passenger side door. The defendants were taken to the Hempstead Police Station Headquarters and charged with Criminal Possession of a Weapon.

At the Precinct, Officer Este processed defendant Woods. During the arrest processing procedure, defendant Woods asked why he had been arrested. Officer Este responded to the defendant that he was arrested "because of the gun." Defendant Woods then stated "the gun wasn't mine, it was the dude's in the backseat." Officer Este told defendant Woods to tell his story to the Detectives.

Counsel for each of the defendants argues that Officer Este did not have reasonable suspicion to stop the vehicle in which the defendants were traveling since Officer Este did not know where the [*3]shots had emanated from. Further, each counsel contends that because the two vehicles were leaving the scene at the same time when Officer Este arrived, there was no reason for him to choose to pursue the Oldsmobile over the Honda. Defense counsels stress that reasonable suspicion cannot be based on a "hunch." Defense counsels question the veracity of whether any witness actually approached Officer Este to report the shooting since he could not provide a description of the individual. Defense counsels also question whether Officer Este actually saw any individuals standing outside of the Oldsmobile when he initially arrived at the McHebes Restaurant parking lot since he never mentioned same in his Grand Jury testimony or in his Police paperwork. Defense counsels further argue that since the defendants were immediately handcuffed and placed in the rear of Police vehicles, they were under arrest at that point and the arrest was without probable cause since no gun had yet been recovered. Counsel for defendant Woods withdrew his motion to suppress the statement allegedly made by his client since it was exculpatory in nature. Counsel for defendant Trice asserts that the car presumption, regarding the possession of the gun by all of the defendants in the car, should not be applicable in this case since the gun was not recovered in the car, it was recovered on the street.

The People respond that Officer Este properly stopped the vehicle since he heard gun shots coming from the direction of the McHebes Restaurant parking lot, and was informed by a passerby that there was a shooting in the rear of McHebes Restaurant parking lot. The People argue that although the defendants were immediately handcuffed upon being removed from the vehicle, they were not under arrest until after the gun was recovered. The People contend that the seizure of the gun was permissible. The People submit that the statement given by defendant Woods was voluntarily given.

REASONABLE SUSPICION FOR THE STOP OF THE VEHICLE:

It has long been held, and consistently held by this Court, that in order for a Police Officer to legally stop a vehicle, the Officer needs to have either observed a violation of the Vehicle and Traffic Law, or reasonably suspect that the occupants had been, were then, or were about to be engaged in criminal conduct. (See People v. Spencer, 84 NY2d 749 [1995] cert denied 516 US 905, 116 SCt 271, 133 LEd2d 192 [1995]; People v. Sobotker, 43 NY2d 559 [1978]; People v. May, 81 NY2d 725 [1992]); People v. Ingle, 36 NY2d 413 [1975]).

In this case, Officer Este heard gunshots coming from the direction of the McHebes Restaurant parking lot. A passerby provided Officer Este with confirmatory information that a shooting was occurring in the rear of McHebes Restaurant. At that point, Officer Este had a founded suspicion that criminal activity was afoot which provided him with a common law right of inquiry with respect to any and all individuals present in the rear of McHebes Restaurant parking lot. (See People v. DeBour, 40 NY2d 210 [1976]; People v. Forelli, 58 AD2d 76 [2nd Dept 1977]). Upon arriving at the scene of the shooting in a marked Police car and encountering only two vehicles which were hastily leaving, Officer Este's founded suspicion was elevated to reasonable suspicion that the occupants of either or both of the vehicles were involved in the shooting. Consequently, Officer Este had a legal basis to stop and detain the occupants of both vehicles. Whether Officer [*4]Este saw two individuals momentarily outside of one of the cars or not is of no moment, since both vehicles immediately sped out of the parking lot after his arrival.

Defense counsel is correct, a Police Officer may not stop a vehicle merely based on a hunch. However, in this case, Officer Este had reasonable suspicion to pursue and stop both vehicles. Since Officer Este could only pursue one of the departing vehicles, the decision regarding which vehicle to follow is left to his discretion.

This Court finds that Officer Este had reasonable suspicion to stop the car that the defendants were traveling in and to conduct an investigation.

REMOVAL OF THE DEFENDANTS FROM THE VEHICLE:

Since Officer Este heard gunshots and was informed by a passerby that shots were fired in the rear of McHebes Restaurant parking lot, it was reasonable for him to conclude that a gun would be present in the vehicle. Therefore, Officer Este was justified in removing each of the defendants from the car and frisking them for weapons. The manner in which defendant Woods was removed from the vehicle, i.e., having him exit with his hands raised and walking towards Officer Este, who had his gun drawn, was also justified for Police Officer safety. (See People v. Robinson, 74 NY2d 773, 774-775 [1989] cert denied 493 US 966, 110 SCt 411, 107 LEd2d 376 [1989]; People v. Douglas, 42 AD3d 756 [3rd Dept 2007] lv denied 9 NY3d 922 [2007]; People v. Shackleford, 57 AD3d 578 [2nd Dept 2008] lv denied 12 NY3d 762 [2009]; People v. Sutherland, 40 AD3d 890 [2nd Dept 2007]). Neither the fact that Officer Este had his gun drawn, nor the fact that the defendants were made to briefly sit in the rear of Police cars while the investigation was being conducted, transformed the stop into an arrest. (See People v. Clark, 172 AD2d 679 [2nd Dept 1991]; People v. Mateo, 122 AD2d 229 [2nd Dept 1986] lv denied 69 NY2d 952 [1987]; People v. Pitt, 110 AD2d 723 [2nd Dept 1985] cert denied 474 US 922, 106 SCt 254, 88 LEd 261 [1985]; People v. Allen, 73 NY2d 378 [1989]).

RECOVERY OF THE HANDGUN:

The testimony regarding the recovery of the handgun was uncontroverted. Officer Este heard the sound of metal hitting the ground near the rear passenger side of the vehicle and concluded that the sound was a gun hitting the ground. When Officer Este searched the area surrounding the rear passenger side of the vehicle, he discovered a handgun lying on the street. Since the handgun was recovered on the street and was thus abandoned property, none of the defendants have standing to contest the seizure of same. (See People v. Brown, 182 AD2d 451 [1st Dept 1992], lv denied 80 NY2d 828 [1992]). Defendants' motions to suppress the gun are denied. As to defense counsel's argument that the car presumption should not apply in this case, this Court finds that the gun was inside of the vehicle when the defendants were stopped. These facts are sufficient to support the People's theory of constructive possession of the gun by all of the defendants. (See People v. Velez, 100 AD2d 603 [2nd Dept 1984]. Consequently, defendant's motion regarding the car presumption is denied.

[*5]PROBABLE CAUSE FOR THE ARREST OF THE DEFENDANTS:

As soon as the defendants exited the Oldsmobile, they were handcuffed and caused to sit in the rear of separate Police vehicles. It is clear that the defendants were not free to leave the Police vehicles or the scene. Although the defendants were not free to leave the scene, this Court finds that the defendants were not under arrest at that time, but were being briefly detained during the investigation; i.e., the search for a handgun. Officer Este immediately located the handgun next to the rear passenger door and thus had probable cause to arrest the defendants for weapon possession. Defense counsels' motions to suppress the arrest and the gun are denied.

STATEMENTS BY THE DEFENDANT WOODS:

Since counsel for defendant Woods is no longer contesting the use by the People of his client's statement, defendant's motion regarding same is rendered moot.

This constitutes the opinion, decision and order of the court.

Dated: December 21, 2009

ENTER:

____________________________________

Hon. Norman St. George

Acting Supreme Court Justice