In People v O*, the Appellate Division, First Department, upheld the defendant’s conviction for criminal possession of a weapon in the second degree. The case primarily focused on Fourth Amendment search and seizure principles, particularly the reasonable suspicion standard and the lawfulness of police pursuit.
The defendant challenged the denial of his suppression motion, arguing that the firearm recovered during his arrest should have been excluded. However, the appellate court found that the officers had reasonable suspicion to conduct a stop based on the circumstances.
Police responded to a reported shooting on the ninth floor of an apartment building and found O* standing alone in the hallway, where they detected the smell of gunpowder. The court ruled that this provided a founded suspicion justifying a common-law inquiry. When officers approached O* and asked if he lived in the building, he exhibited nervous behavior, including trembling, sweating, and repeatedly pressing the elevator button.
At that point, an officer observed a bulge near O*'s waist, which raised reasonable suspicion that he was armed or dangerous. The officer attempted a minimally intrusive safety precaution by grabbing the bulge, but O* slapped the officer’s hands away and fled. The court ruled that this lawful level-three stop justified police pursuit, and the subsequent recovery of a firearm provided probable cause for his arrest.
O* also argued that the People’s off-calendar statement of readiness was illusory, violating his speedy trial rights. However, the appellate court found that he failed to preserve this challenge and declined to review it in the interest of justice. Even if reviewed, the court rejected the claim on the merits, citing precedent.
Finding no basis to reduce O*'s seven-year sentence, the trial court’s decision was affirmed.
Just goes to show you. A guy should never expose his bulge ....
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DECISION