In re Ya–Sin S., 2013-08486, 2013-08487 (Docket No. D-8-13)

• Decision Date: 12 November 2014
• Docket Number: 2013-08486, 2013-08487 (Docket No. D-8-13)
• Citation: 2014 N.Y. Slip Op. 07672,996 N.Y.S.2d 319,122 A.D.3d 751
• Parties: In the Matter of YA–SIN S. (Anonymous), appellant.
• Court: New York Supreme Court — Appellate Division

122 A.D.3d 751
996 N.Y.S.2d 319
2014 N.Y. Slip Op. 07672

In the Matter of YA–SIN S. (Anonymous), appellant.

2013-08486, 2013-08487 (Docket No. D-8-13)

Supreme Court, Appellate Division, Second Department, New York.

Nov. 12, 2014.

996 N.Y.S.2d 320

Carol Kahn, New York, N.Y., for appellant.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Deborah A. Brenner and Nicholas J. Murgolo of counsel), for respondent.

MARK C. DILLON, J.P., L. PRISCILLA HALL, SANDRA L. SGROI, and BETSY BARROS, JJ.

Opinion

122 A.D.3d 752

In a juvenile delinquency proceeding pursuant to Family Court Act article 3, Ya–Sin S. appeals from (1) an order of fact-finding of the Family Court, Kings County (McElrath, J.), dated August 2, 2013, made after a hearing, finding that he committed acts which, if committed by an adult, would have constituted the crimes of criminal possession of a weapon in the second degree (two counts) and resisting arrest, and committed the offense of unlawful possession of weapons by persons under sixteen, and (2) an order of disposition of the same court, also dated August 2, 2013, which, upon the order of fact-finding and after a dispositional hearing, adjudged him to be a juvenile delinquent and placed him on probation for a period of 24 months. The appeal from the order of disposition brings up for review the denial, after a hearing, of that branch of the appellant's motion which was to suppress physical evidence.

ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as that order was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition; and it is further,

ORDERED that the order of disposition is affirmed, without costs or disbursements.

996 N.Y.S.2d 321

Police officers testified at a Mapp/Dunaway hearing (see Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 ; Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 ) that on New Year's Eve, December 31, 2012, they each heard multiple gunshots in what was a known high-crime neighborhood; that minutes later, the appellant was observed four or five blocks from the area of the gunshots with a male companion; that the appellant held a bulge that was visible at his waistband which, according to one of the officers, was consistent with the carrying of a gun; that upon seeing Sergeant Lawrence Carson, the appellant immediately fled; that the appellant held his waistband with his right hand as he ran; and that the appellant threw a firearm to the ground with his right hand during the police officers' pursuit. The hearing court expressly credited the testimony of the testifying officers and concluded that, under the circumstances of the case, the officers had reasonable suspicion to believe that a crime had been committed or was about to be committed, and denied suppression. We affirm.

Appellate courts have held under the same or similar factual circumstances that the police have reasonable suspicion to pursue an individual observed with a bulge at the waistband

122 A.D.3d 753

while in geographic and temporal proximity of gunshots, who then flees from the police (see e.g. People v. Buie, 89 A.D.3d 748, 748–749, 932 N.Y.S.2d 145 [reasonable suspicion where officers heard gunshots and observed defendant in close geographic and temporal proximity flee with one hand holding his waist]; see also People v. Sierra, 83 N.Y.2d 928, 929–930, 615 N.Y.S.2d 310, 638 N.E.2d 955 ; People v. Martinez, 80 N.Y.2d 444, 448, 591 N.Y.S.2d 823, 606 N.E.2d 951 ; People v. Haynes, 115 A.D.3d 676, 981 N.Y.S.2d 542 [defendant grabbing waistband and taking flight upon seeing police]; People v. Cruz, 14 A.D.3d 730, 731–732, 786 N.Y.S.2d 848 [bulge at waistband coupled with flight from police]; People v. Byrd, 304 A.D.2d 490, 761 N.Y.S.2d 155 [defendant holding bulge at the waistband fled upon seeing police while keeping a hand on the waistband]; People v. Pines, 281 A.D.2d 311, 312, 722 N.Y.S.2d 239, affd. 99 N.Y.2d 525, 752 N.Y.S.2d 266, 782 N.E.2d 62 [defendant bunching up a bubble jacket at the waistband, with a hand cupped underneath as if holding an object, followed by flight upon the approach of police] ). The Court of Appeals has recognized that reasonable suspicion, and not probable cause, is the applicable standard in assessing a police stop or detention and that, in determining whether reasonable suspicion exists, a defendant's flight may be considered (see People v. Pines, 99 N.Y.2d 525, 527, 752 N.Y.S.2d 266, 782 N.E.2d 62 ).

Here, because the pursuit of the appellant was justified, the gun he discarded during the pursuit was not subject to suppression as a result of any unlawful police conduct (see People v. Sierra, 83 N.Y.2d at 930, 615 N.Y.S.2d 310, 638 N.E.2d 955 ; People v. Soscia, 96 A.D.3d 1081, 1082, 946 N.Y.S.2d 653 ; People v. Buie, 89 A.D.3d at 749, 932 N.Y.S.2d 145 ).

The opinion of our dissenting colleague that the police lacked reasonable suspicion to pursue the appellant, and that the gun evidence should therefore have been suppressed, is primarily based upon her conjecture that “the gunshots did not factor into their decision to approach the appellant and his companion.” However, the police testimony is replete with references to the gunshots, and it is clear that such testimony was among the evidence that the Family Court considered. Indeed, the Family Court expressly credited the police officers' testimonies, which necessarily included evidence of their hearing

996 N.Y.S.2d 322

gunshots in the vicinity. The credibility determinations of the hearing court, which actually saw and heard the witnesses testify, is entitled to deference on appeal, and appellate courts do not substitute their own contrary findings of fact unless the findings of the hearing court are clearly unsupported by the record (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 ; People v. Marcelle, 120 A.D.3d 833, 991 N.Y.S.2d 658 ; People v. Taylor, 120 A.D.3d 519, 990 N.Y.S.2d 635 ; People v. Jarvis, 117 A.D.3d 969, 985 N.Y.S.2d 889 ; People v. Hobson, 111 A.D.3d 958, 975 N.Y.S.2d 682 ; People v. Washington, 108 A.D.3d 578, 579, 970 N.Y.S.2d 36 ). Although

122 A.D.3d 754

our dissenting colleague places great weight upon the fact that the testimony of the three police officers was not identical with respect to how long it was after they heard the gunshots that they first observed the appellant, the consistency of the record supports the Family Court's determination to credit the police officers' testimonies (see People v. Hill, 101 A.D.3d 1772, 955 N.Y.S.2d 922 ; People v. Bennett, 57 A.D.3d 912, 913, 870 N.Y.S.2d 421 ; People v. Ellerbe, 265 A.D.2d 569, 570, 697 N.Y.S.2d 643 ).

Viewing the evidence in the light most favorable to the presentment agency (see Matter of David H., 69 N.Y.2d 792, 793, 513 N.Y.S.2d 111, 505 N.E.2d 621 ; cf. People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish, beyond a reasonable doubt, that the appellant committed acts which, if committed by an adult, would have constituted the crimes of criminal possession of a weapon in the second degree under an accomplice liability theory (see Penal Law §§ 265.00 [15 ]; 265.03[1][b]; [3]; 20.00). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (cf. CPL 470.15 [5 ]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see Matter of Darnell C., 66 A.D.3d 771, 772, 887 N.Y.S.2d 211 ; cf. People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the Family Court's fact-finding determination with respect to the allegations of the petition that the appellant committed acts which, if committed by an adult, would have constituted the crimes of criminal possession of a weapon in the second degree was not against the weight of the evidence (cf. People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

The appellant's remaining contention is without merit.

DILLON, J.P., HALL and SGROI, JJ., concur.

BARROS, J., concurs in part and dissents in part, and votes to dismiss the appeal from the order of fact-finding, grant that branch of the appellant's motion which was to suppress physical evidence, reverse the order of...