People v Casado

People v Casado 2007 NY Slip Op 06920 [43 AD3d 758] September 25, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 7, 2007

The People of the State of New York, Respondent,
v
Oscar Casado, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (Laura Lieberman Cohen of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Vincent Rivellese of counsel), for respondent.

Judgment, Supreme Court, New York County (John A.K. Bradley, J., at suppression hearing; Budd G. Goodman, J., at plea and sentence), rendered December 9, 2004, convicting defendant of criminal possession of a weapon in the second degree, and sentencing him to a term of 3½ years, unanimously affirmed.

The court properly denied defendant's suppression motion. There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v Prochilo, 41 NY2d 759, 761 [1977]). When Police Officer Coard and other officers, in response to a report of a gang fight occurring at a subway station, arrived at the station, Officer Coard saw about 20 young men fighting. As the officers intervened, some of the participants dropped box cutters and some fled. The officers were able to detain some 14 of the participants, including defendant, who had a cut on his forehead. Officer Coard also testified that every one of the 14 individuals who were detained had been "actively participating in the fight." On those facts, the court properly concluded that Officer Coard had reasonable suspicion to stop defendant and to conduct a protective pat down. The officer did not stop defendant on the basis of his mere presence, and the officer's inability to provide any further particulars as to defendant's conduct [*2]does not warrant a different conclusion. During this lawful stop, defendant attempted to pass a firearm to another person, thereby unquestionably providing probable cause for his arrest. Concur—Tom, J.P., Saxe, Friedman, Gonzalez and McGuire, JJ.