People v. McLee

249 A.D.2d 995, 672 N.Y.S.2d 164, 1998 N.Y. App. Div. LEXIS 5173

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 29, 1998
• Status: Published

Opinion

—Judgment unanimously modified as a matter of discretion in the interest of justice and as modified affirmed in accordance with the following Memorandum: On appeal from a judgment convicting him of criminal possession of a weapon in the third degree (Penal Law § 265.02 [4]), defendant contends that Supreme Court erred in denying his suppression motion. We disagree. According to the People’s proof at the suppression hearing, defendant was stopped by the police as he emerged from a backyard. The police were searching the yards for a suspect who moments earlier had abandoned his car one block away and had fled from them after a high speed chase. Defendant matched the description of the suspect and he was walking fast, looking around, sweating and breathing hard. We reject the contention of defendant that the police lacked reasonable suspicion to. stop him (see, People v Cantor, 36 NY2d 106, 112-113; cf, People v Brown, 215 AD2d 333). The court’s factual determinations are supported by the record and should not be disturbed (see, People v Williams, 202 AD2d 976, Iv denied 83 NY2d 916).

We modify the sentence as a matter of discretion in the interest of justice by vacating that part of the sentence sentencing defendant to six months’ incarceration. (Appeal from Judgment of Supreme Court, Onondaga County, Brunetti,' J. — Criminal Possession Weapon, 3rd Degree.) Present — Pine, J. P., Lawton, Hayes, Wisner and Boehm, JJ.