THE PEOPLE OF THE STATE OF NEW YORK v. EARL JONES
November 21, 2016
65 NE3d 699, 42 NYS3d 669
When the second officer arrived at the scene, he observed the fleeing man run into the backyard with the first officer running after him and defendant walking down Ellison Street. No one else was in the area. As the second officer parked and exited his vehicle, defendant yelled an expletive and fled. The officer gave chase and observed a handgun fall from defendant’s waist.
County Court denied defendant’s motion to suppress the gun. The Appellate Division affirmed, finding the second officer had “a founded suspicion that criminal activity was afoot, justifying his initial common-law inquiry of defendant” (126 AD3d 1518, 1518 [4th Dept 2015]). The Court explained that defendant’s flight upon seeing the second officer exit his vehicle provided the officer with the requisite reasonable suspicion of criminal activity to warrant his pursuit of defendant, and the fact that defendant dropped the gun during the pursuit gave rise to probable cause (id. at 1518-1519) to arrest.
The issue of whether the second officer had reasonable suspicion to pursue defendant is a mixed question of law and fact, limiting our review (see People v. Moore, 6 NY3d 496, 500-501 [2006]). Because there is record support for the determination of the lower courts, we affirm (see People v. Pines, 99 NY2d 525, 527 [2002]; compare Moore, 6 NY3d 496 [2006]).
Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur.
Order affirmed, in a memorandum.
THE PEOPLE OF THE STATE OF NEW YORK v. EARL JONES
November 21, 2016
65 NE3d 699, 42 NYS3d 669
APPEARANCES OF COUNSEL
Robert S. Dean, Center for Appellate Litigation, New York City (Jody Ratner of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York City (Jared Wolkowitz and Patricia Curran of counsel), for respondent.
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be affirmed.
A plainclothes police officer observed defendant, who was carrying a tile cutter and green duffel bag, pulling on the lock of a door to a construction site. The officer decided to follow defendant and observed him enter the open driver’s side door of a FedEx delivery truck that was parked on the street. The officer saw defendant rummage through the front compartment of the truck and then walk around to the back, where packages were stored. The officer testified that, from his vantage point, he could see a portion of defendant’s leg as he stood for a few seconds at the back of the truck. Just as the officer began to approach, defendant walked away. When the officer reached the back of the vehicle, an unidentified woman who was standing nearby asked: “Did you see he was trying to get into the back of the truck? Are you going to get him?” Soon thereafter, the officer observed defendant emerge from a building that was under construction a few blocks away. Defendant was still carrying the tile cutter and duffel bag when the officer confronted him and placed him under arrest.
Before trial, the prosecutor sought to admit the hearsay statement made by the unidentified woman as either an “excited utterance” or “present sense impression.” Defense
Defendant’s principal argument on appeal is that the trial court erred in admitting the hearsay statement of the unidentified woman. We hold that the statement was properly admitted as a present sense impression. That exception to the hearsay rule allows the admission of “spontaneous descriptions of events made substantially contemporaneously with the observations . . . if the descriptions are sufficiently corroborated by other evidence” (People v. Brown, 80 NY2d 729, 734 [1993]). Here, the woman’s statement was made to the officer immediately after the event she described and before she had an opportunity for studied reflection. The officer’s own observations sufficiently corroborated her description to allow its admission at trial (see id. at 736-737).
Because the woman’s statement was admissible as a present sense impression, we need not address whether it was also admissible as an excited utterance. Defendant’s remaining challenge to the statement on Confrontation Clause grounds is unpreserved for our review, and his argument with respect to the legal sufficiency of the verdict lacks merit.
Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur.
Order affirmed, in a memorandum.