People v. Bora

—Judgment, Supreme Court, New York County (Harold Rothwax, J., at suppression hearing; Herbert Altman, J., at plea and sentence), rendered April 26, 1990, convicting the defendant, upon his plea of [385] guilty, of criminal possession of a controlled substance in the fifth degree and sentencing him, as a predicate felon, to an indeterminate term of imprisonment of from two to four years, affirmed. After the defendant was indicted for the crime of criminal possession of a controlled substance in the fourth degree, a hearing was held in response to his motion to suppress physical evidence. Police Officer Blake Stuller testified that at 6:58 p.m. on June 1, 1989, he and his partner, Officer Minniter, received a radio report of a male black, wearing red and blue, possessing weapons and selling drugs at the corner of 148th and St. Nicholas Avenue, an area known by the officers to be a drug-prone location. Within one minute of receiving the report, the officers arrived at the location indicated and saw approximately ten people in the area, including the defendant, who was the only one wearing a red shirt and blue pants at the corner described. Stuller, who was in uniform, got out of the patrol car to approach the defendant and the defendant began to walk away. Stuller told him to stop, but instead the defendant ran, and, as he fled, threw a brown paper bag containing 101 vials of crack cocaine on the ground. The officers pursued the defendant who was then arrested. The Supreme Court, concluding that the officers had acted properly and that the defendant had abandoned the contraband, denied his motion to suppress. The defendant thereafter pleaded guilty to the crime of criminal possession of a controlled substance in the fifth degree. An anonymous tip which gives a general description and location of an individual with a gun furnishes the police with the common-law right to inquire (see, People v Gaines, 159 AD2d 175, 177, lv withdrawn 76 NY2d 986). This common-law right to inquire is "activated by a founded suspicion that criminal activity is afoot”, and entitles a police officer "to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure” (People v De Bour, 40 NY2d 210, 223; see, People v Hollman, 79 NY2d 181, 191-192). However, "only where the anonymous information is 'so specific and congruous’ with that which is actually encountered that the reliability of the tip may be reasonably assumed, or when the information provided by the tip is considered in conjunction with the attendant circumstances and exigencies, that more intrusive police action may be justified” (People v Gaines, supra, at 177, citing People v Benjamin, 51 [386] NY2d 267; People v Bond, 116 AD2d 28, lv denied 68 NY2d 767). In order forcibly to stop and detain an individual, the officer must have a reasonable suspicion that the person has committed, is committing, or is about to commit a crime (People v May, 81 NY2d 725; People v Martinez, 80 NY2d 444; People v Hollman, supra; People v De Bour, supra). After receiving the radio report, the officers arrived at the known drug location within one minute. Although approximately ten people were in the area, only the defendant was wearing the clothing described. He was also observed standing on the corner indicated in the report. While the Court of Appeals has held that a pat down is permissible under such circumstances (see, People v Salaman, 71 NY2d 869), at the very least, the officers herein had a common-law right to inquire, entitling them to interfere with the defendant to the extent necessary to gain explanatory information (People v De Bour, supra). However, as they approached, without guns drawn, the defendant began to walk away. It was only after he started to leave that Officer Stuller called to him to stop. Instead of complying with this request, the defendant fled. The police radio transmission which provided detailed information regarding a man with a gun and selling drugs, the officers’ quick response time, their observation of the defendant at the specified location, of being the only person wearing clothing matching the description broadcast in the report, together with the defendant’s attempt to flee when he saw the officers before they questioned him, his refusal of their request to stop and then his flight, all combined to provide the officers with the reasonable suspicion necessary to pursue the defendant (People v Martinez, supra; People v Leung, 68 NY2d 734; People v Wider, 172 AD2d 573; People v Jackson, 172 AD2d 561, lv denied 78 NY2d 1077; cf., People v May, supra). "[T]he level of police intrusion was an appropriate response to the observations and beliefs of the officers involved.” (People v Leung, supra, at 736; People v De Bour, supra.) Since the initial approach and subsequent pursuit and detention of the defendant constituted appropriate, lawful police conduct, the seizure of the bag containing the vials of cocaine which the defendant discarded during flight was also lawful (People v Martinez, supra; People v Leung, supra). After recovering the vials of cocaine, the police had probable cause to arrest the defendant (supra). Accordingly, the defendant’s motion to suppress physical evidence was properly denied. Concur — Carro, J. P., Milonas and Rosenberger, JJ.