SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

540 

KA 14-00958 

PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND SCUDDER, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

CHRISTOPHER L. WALTERS, DEFENDANT-APPELLANT.

 

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (ANTHONY

M. ROSSI OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Erie County (Penny

M. Wolfgang, J.), rendered May 29, 2014. The judgment convicted

defendant, upon his plea of guilty, of criminal possession of a weapon

in the second degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: On appeal from a judgment convicting him upon his

plea of guilty of criminal possession of a weapon in the second degree

(Penal Law § 265.03 [3]), defendant contends that Supreme Court erred

in refusing to suppress the weapon found by the police in the pocket

of a sweatshirt that they recovered from an unoccupied seat on a city

bus. According to defendant, the weapon should be suppressed because

he was illegally detained by police for 11⁄2 hours before they arrested

him for possession of the weapon. We reject defendant’s contention. 

The record of the suppression hearing establishes that the police

asked defendant to leave the bus because he matched the description

provided by an identified complainant. Before the complainant arrived

for a showup identification procedure, a police officer returned to

the bus to look for a black sweatshirt, based on the description of

the suspect’s clothing that was provided by the complainant, and the

sweatshirt was located in a seat that was in proximity to where

defendant was seated. The officer observed the gun in the pocket when

he picked up the sweatshirt. Following the complainant’s

identification of defendant as the man who boarded the bus with a gun,

defendant was transported to police headquarters; however, he was not

formally charged until the police had reviewed the videotape from the

bus, which showed him removing the sweatshirt and changing seats after

the bus had stopped and the police arrived. 

The court properly determined that defendant abandoned the gun
-2- 540 

KA 14-00958 

following proper police conduct and thus that he lacked standing to

seek suppression of that evidence (see People v Stevenson, 273 AD2d

826, 827; see also People v Hall, 152 AD2d 905, 905-906, affd 74 NY2d

822; see generally People v Ramirez-Portoreal, 88 NY2d 99, 110). In

any event, contrary to defendant’s contention, the 11⁄2 hour detention

during which the police obtained the videotape does not constitute an

illegal detention (cf. People v Ryan, 12 NY3d 28, 30-31). Indeed, the

police had probable cause to arrest defendant at the scene following

the positive identification of defendant and the seizure of the weapon

(see People v Williams, 129 AD3d 1583, 1584, lv denied 26 NY3d 973;

cf. Ryan, 12 NY3d at 30). 

Entered: June 17, 2016 Frances E. Cafarell

Clerk of the Court