People v Flow

People v Flow 2007 NY Slip Op 01401 [37 AD3d 303] February 20, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 11, 2007

The People of the State of New York, Respondent,
v
Charlie Flow, Appellant.

—[*1] Center for Appellate Litigation, New York (Robert S. Dean of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (David L. Frison of counsel), for respondent.

Judgment, Supreme Court, New York County (James A. Yates, J., at hearing; Ruth Pickholz, J., at plea and sentence), rendered May 26, 2005, convicting defendant of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of three years, unanimously affirmed.

The court properly denied defendant's motion to suppress a weapon that was recovered from his person after he was arrested and transported to a police station. The record supports the court's finding that the police had probable cause to arrest defendant, based upon the in-person statement of a citizen witness who identified himself by name, who told the police that he had personally observed defendant chasing two persons while holding a firearm, and who remained with the police and identified defendant as the person he observed (see People v Hicks, 38 NY2d 90 [1975]). The fact that, following defendant's arrest, the identified witness declined to cooperate any further with the police does not warrant a different conclusion (see People v Simpson, 244 AD2d 87, 91 [1998], appeal withdrawn 92 NY2d 947 [1998]). The record also supports the court's alternative finding that the police at least had reasonable suspicion for a stop and frisk, which escalated to probable cause when defendant put up a violent struggle, refusing to be frisked (see People v Henriquez, 128 AD2d 803 [1987], lv denied 69 NY2d 1004 [1987]). Concur—Tom, J.P., Saxe, Sweeny, Malone and Kavanagh, JJ.