People v Agramonte

People v Agramonte 2008 NY Slip Op 09901 [57 AD3d 333] December 18, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

The People of the State of New York, Respondent,
v
David Agramonte, Appellant.

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

Robert M. Morgenthau, District Attorney, New York (Giti Baghban of counsel), for respondent.

Judgment, Supreme Court, New York County (Rena K. Uviller, J., at suppression hearing; Michael J. Obus, J., at plea and sentence), rendered October 26, 2006, convicting defendant of attempted criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a term of four years, unanimously affirmed.

The court properly denied defendant's suppression motion. An officer saw defendant holding his hand over the front of his waist, partially obscuring what appeared to be the barrel of a derringer protruding from his waistband. Although this object ultimately turned out to be a distinctively shaped belt buckle, the hearing court examined the buckle and made a determination that, from the officer's vantage point at the time of the incident, the buckle would have reasonably appeared to be a firearm. We find no reason to disturb that factual determination (see People v Prochilo, 41 NY2d 759, 761 [1977]). Moreover, the officer simply made a common-law inquiry, but defendant ignored the officer's attempts to engage him and, prior to any police action constituting a seizure, he "actively fled from the police" (People v Moore, 6 NY3d 496, 500-501 [2006]), which heightened the level of suspicion (see People v Sierra, 83 NY2d 928, 930 [1994]). Accordingly, defendant's abandonment of contraband during his flight from pursuit was not precipitated by any unlawful police conduct. Concur—Lippman, P.J., Tom, Buckley, Moskowitz and Renwick, JJ.