SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

633 

KA 08-02353 

PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

TERRY L. HOLMES, DEFENDANT-APPELLANT.

 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF

COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Monroe County Court (John R.

Schwartz, A.J.), rendered August 11, 2008. The judgment convicted

defendant, upon a jury verdict, of criminal possession of a weapon in

the second degree and criminal possession of a weapon in the third

degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: On appeal from a judgment convicting him upon a jury

verdict of criminal possession of a weapon in the second degree (Penal

Law § 265.03 [3]) and criminal possession of a weapon in the third

degree (§ 265.02 [1]), defendant contends that County Court erred in

refusing to suppress the gun that he discarded while fleeing from the

police. We reject that contention. It is well settled that “a

defendant’s flight in response to an approach by the police, combined

with other specific circumstances indicating that the suspect may be

engaged in criminal activity, may give rise to reasonable suspicion,

the necessary predicate for police pursuit” (People v Sierra, 83 NY2d

928, 929; see People v Gray, 77 AD3d 1308, 1308). Here, the police

received a 911 call reporting that three black males were engaged in

suspicious activity, i.e., they had emerged from behind the house of

the caller’s sister and entered a blue vehicle. The responding

officer, who arrived at the scene within a few minutes of the call,

observed defendant driving away in the vehicle described in the 911

call with two other black males. When the officer turned to follow

defendant’s vehicle in his marked police car, the vehicle abruptly

swerved out of the driving lane and toward the curb. The passenger

front door opened, the vehicle struck the curb and the two passengers

jumped out of the vehicle as it rolled along the curb. At that point,

the officer pulled behind the vehicle and activated his lights,

whereupon defendant jumped out of the vehicle as it rolled and the
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KA 08-02353 

officer pursued defendant on foot. Contrary to defendant’s

contention, we conclude that the information provided by the 911

caller, together with defendant’s conduct in driving the vehicle into

a curb, abandoning the moving vehicle and fleeing on foot in response

to observing the marked police car, provided the officer with the

requisite reasonable suspicion to pursue defendant (see People v

Martinez, 59 AD3d 1071, 1072, lv denied 12 NY3d 856; People v Johnson,

19 AD3d 1163, 1164, lv denied 5 NY3d 829).

Contrary to defendant’s further contention, the sentence is not

unduly harsh or severe, particularly in light of his criminal history

and the nature of the offense.

Entered: June 8, 2012 Frances E. Cafarell

Clerk of the Court