People v. Flow

37 A.D.3d 303, 831 N.Y.S.2d 129

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 20, 2007
• Status: Published

Opinion

Judgment, Supreme Court, New York County (James A. Yates, J., at hearing; Ruth Pickholz, J., at plea and sentence), rendered May 26, 2005, convicting defendant of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of three years, unanimously affirmed.

The court properly denied defendant’s motion to suppress a weapon that was recovered from his person after he was arrested and transported to a police station. The record supports the court’s finding that the police had probable cause to arrest defendant, based upon the in-person statement of a citizen witness who identified himself by name, who told the police that he had personally observed defendant chasing two persons while holding a firearm, and who remained with the police and identified defendant as the person he observed (see People v Hicks, 38 NY2d 90 [1975]). The fact that, following defendant’s arrest, the identified witness declined to cooperate any further with the police does not warrant a different conclusion (see People v Simpson, 244 AD2d 87, 91 [1998], appeal withdrawn 92 NY2d 947 [1998]). The record also supports the court’s alternative finding that the police at least had reasonable suspicion for a stop and frisk, which escalated to probable cause when defendant put up a violent struggle, refusing to be frisked (see People v Henriquez, 128 AD2d 803 [1987], lv denied 69 NY2d 1004 [1987]). Concur—Tom, J.E, Saxe, Sweeny, Malone and Kavanagh, JJ.