People v. Smith, 256 A.D.2d 732 (N.Y. App. Div. 1998). · Go Syfert
People v. Smith, 256 A.D.2d 732 (N.Y. App. Div. 1998). Cases Citing This Book View Copy Cite
3 citation events across 1 distinct court.
Strongest positive: People v. Sanders (nyappdiv, 2020-07-23)
Top citers, strongest first. 3 distinct citers.
discussed Cited as authority (rule) People v. Sanders
N.Y. App. Div. · 2020 · confidence medium
To the extent that defendant argues that the heroin found in the KFC parking lot should have been suppressed, the record supports County Court's conclusion that it was abandoned ( see People v Boodle , 47 NY2d 398, 404 [1979], cert denied 444 US 969 [1979]; People v Smith , 256 AD2d 732, 733 [1998], lv denied 93 NY2d 929 [1999]).
cited Cited as authority (rule) People v. Knowles
N.Y. App. Div. · 2004 · confidence medium
People v Smith, 256 AD2d 732, 733 [1998], lv denied 93 NY2d 929 [1999]; People v Diaz, 221 AD2d 749 [1995], lv denied 87 NY2d 921 [1996]).
discussed Cited as authority (rule) People v. Marshall
N.Y. App. Div. · 2004 · confidence medium
This second level of intrusion—the common-law right to inquire—is allowed when the police have a “founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure” (People v De Bour, supra at 223; see People v Hollman, supra at 191-192; People v Smith, 256 AD2d 732, 732-733 [1998], lv denied 93 NY2d 929 [1999]).
The People of the State of New York
v.
Brent B. Smith
Appellate Division of the Supreme Court of the State of New York.
Dec 10, 1998.
256 A.D.2d 732
Graffeo.
Cited by 3 opinions  |  Published
Graffeo, J.

Appeal from a judgment of the County Court of Tompkins County (Sherman, J.), rendered August 19, 1996, convicting defendant upon his plea of guilty of two counts of the crime of criminal possession of a controlled substance in the third degree.

On February 22,1996 an anonymous caller, having witnessed a drug sale in the vicinity of State Street and Plain Street in the City of Ithaca, Tompkins County, reported the incident to the Ithaca Police Department. The caller described the suspect as a black male wearing a green jacket. Upon arriving at that location approximately 3 to 5 minutes after receiving the suspect’s description and location by radio transmission, Police Officer Marlon Byrd observed a black male in a green jacket heading north on Plain Street. There were no other individuals in the vicinity matching the description. As Byrd approached defendant in his vehicle, he inquired whether defendant was “dirty” (street term for possessing illegal drugs or property), to which defendant replied in the negative and began to walk away. Byrd told defendant to “hold on” but as he opened his car door, defendant started running, discarding six plastic bags from his pocket during his flight. Byrd retrieved the plastic bags which appeared to contain crack cocaine. Having recognized defendant and having known the location of his home, Byrd then drove to defendant’s residence and placed defendant under arrest. Defendant moved to suppress the seizure of the cocaine and challenged the legality of his arrest. County Court denied defendant’s motions and he thereafter pleaded guilty to two counts of criminal possession of a controlled substance in the third degree. Youthful offender status was denied and defendant was sentenced to concurrent terms of imprisonment of 1 to 4 years and this appeal ensued.

We reject defendant’s contention that County Court should have granted his suppression motion. Here, Byrd received an anonymous tip which provided the description and location of a drug sale that had just occurred. Arriving at the scene within minutes, the officer observed an individual matching the description walking away from the vicinity. Under such circum[*733] stances, we find that Byrd had a reasonable suspicion that defendant may have been involved in a crime, thereby triggering the common-law right to inquire (see, People v Hollman, 79 NY2d 181, 185; People v De Bour, 40 NY2d 210, 215; People v Bora, 191 AD2d 384, 385-386, affd 83 NY2d 531). Byrd’s minimal intrusion of asking defendant if he was “dirty” was not a “forcible seizure” but was necessary merely to obtain explanatory information. After Byrd’s initial inquiry, defendant chose to run away and in the process of doing so threw bags containing vials of crack cocaine to the ground. Defendant’s contention that the inquiry should have ended since defendant provided a nonincriminatory response to Byrd’s question is unavailing. Defendant’s immediate flight, in combination with the accuracy of the tip and Byrd’s immediate arrival at the specified location, justified Byrd’s pursuit of defendant (see, People v Sierra, 83 NY2d 928, 930; People v Leung, 68 NY2d 734, 736; People v Douglas, 227 AD2d 130, lv denied 88 NY2d 965; People v Bora, supra, at 386; cf., People v Javier, 175 AD2d 182).

Because Byrd’s initial approach, inquiry and subsequent pursuit of defendant was appropriate and lawful police conduct, County Court’s denial of the motion to suppress the drug seizure was proper (see, People v Leung, supra, at 736). Moreover, defendant’s intentional discarding of the crack cocaine was a calculated act manifesting an independent intent to separate himself from his property and, therefore, its seizure was proper (see generally, People v Jackson, 251 AD2d 820; People v Davis, 217 AD2d 805, 807, lv denied 86 NY2d 841; Matter of Miguel C., 196 AD2d 868, 869). Since the seizure of the drugs was lawful, the police had probable cause to arrest defendant on the drug charge (see, People v Leung, supra).

Lastly, the record reflects that County Court properly exercised its discretion in denying defendant youthful offender status after consideration of his prior criminal history, the presentence investigation report, defendant’s sentencing memorandum and the relevant circumstances of the case (see, People v Campbell, 245 AD2d 983, 984; People v Diaz, 221 AD2d 749, lv denied 87 NY2d 921).

Crew III, J. P., White, Peters and Carpinello, JJ., concur. Ordered that the judgment is aflirmed.