People v. William II.

279 A.D.2d 648, 717 N.Y.S.2d 793, 2001 N.Y. App. Div. LEXIS 52

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 4, 2001
• Status: Published

Opinions

Peters, J.

Appeal from a judgment of the County Court of Tompkins County (Barrett, J.), rendered March 10, 2000, which sentenced defendant upon his adjudication as a youthful offender.

The day following a shooting, an anonymous caller provided the City of Ithaca Police Department in Tompkins County with a physical description of one of the assailants named “Will” and advised that he was accompanied by two Caucasian males. Cautioning that Will was armed with a weapon and in the vicinity of Seneca Street, his description was dispatched to three police officers, one of whom identified a group of individuals meeting the description. He, along with his fellow officers, approached the group in a parking lot and asked the suspect, whom he recognized as Will Cruz, to face his police car so that he could be frisked. Notably, Cruz was dressed in a manner which would not enable him to secret a weapon. A plainclothes officer approached the two Caucasian males and asked them to face his unmarked police car. Defendant, one of the two, was the only individual carrying an object, here a backpack, into which a gun could be secreted. Rather than complying, defendant began to run. Pursued by one of the officers down a stream bed, the officer ultimately drew his gun and directed him to “lay down on his belly with his arms outstretched.” Three other officers who had followed the chase also drew their weapons and pointed them at defendant; he was handcuffed and his backpack was searched. While marihuana and drug-related paraphernalia were discovered, no weapon was found.

Following a hearing, County Court found, inter alia, that the initial stop of defendant did not violate his constitutional rights, that there was a lawful basis for pursuit and that no excessive force was used. After entering a plea of guilty, defendant was adjudged a youthful offender and sentenced to five years probation. Upon his appeal, the lawfulness of the initial stop, the pursuit and the use of force is challenged.

Mindful that great weight should be accorded to the finding of the suppression court (see, People v Pugh, 246 AD2d 679, lv denied 92 NY2d 882), we recognize that while an anonymous tip indicating that an unidentified person is carrying a weapon will not, by itself, provide an officer with a quantum of reasonable suspicion to justify intrusive police action (see, Florida v J.L., 529 US 266; People v Be Bour, 40 NY2d 210), the police were obligated to take some action on this radio call. If police conduct is legally challenged, the People must show that, in view of all the circumstances, the action taken was justified (see, People v Lypka, 36 NY2d 210). Because police-citizen encounters are not static situations, facts sufficient to support intrusive police action may develop rapidly at the scene (see, People v Benjamin, 51 NY2d 267, 270; People v Be Bour, supra, at 225).

Here, the record reveals that the officer was justified in believing that one of the individuals being confronted may be armed. Given the facts that came to his attention upon the initial confrontation, his independent observations corroborated the specific information received from the informant both as to the description of the individuals, one of whom was identified as “Will,” and their location. The officers approached defendant and his companions without a weapon drawn and, upon a commencement of a frisk of Cruz, defendant took flight. For these reasons, we do not find the initial intrusion unreasonable (see, People v Salaman, 71 NY2d 869; People v Finlayson, 76 AD2d 670, lv denied 51 NY2d 1011, cert denied 450 US 931).

As to the pursuit, it was triggered moments after the police, believing that “criminal activity was afoot in that narrowly defined area” (Illinois v Wardlow, 528 US 119, 138, n 16 [Stevens, J., concurring in part and dissenting in part]), attempted to frisk a companion. With an objectively credible reason for approaching defendant’s companion, and fully recognizing that defendant’s flight could not, in and of itself, create a reasonable suspicion of criminal activity justifying pursuit, we find that this conduct, viewed as part of all other attendant circumstances, clearly justified police pursuit (see, People v Martinez, 80 NY2d 444; People v Tyner, 198 AD2d 627, lv denied 84 NY2d 834).

Nor do we find error in the way in which the officers approached defendant after his flight or their handcuffing of him when finally seized. “Where, as here, police officers find themselves in a rapidly developing and dangerous situation presenting an imminent threat to their well-being, they must be permitted to take reasonable measures to assure their safety and they should not be expected ‘to await the glint of steel’ before doing so” (People v Allen, 73 NY2d 378, 380, quoting People v Benjamin, 51 NY2d 267, 271).

For these reasons, we affirm the judgment of conviction.

Rose and Lahtinen, JJ., concur.