Fourth Department split on weapon case

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In a split decision, a state appeals court has affirmed weapon convictions.

Jasmen T. Leonard pleaded guilty to second-degree criminal possession of a weapon and attempted second-degree criminal possession of a weapon in March 2017 in Monroe County Court.

By a 3-2 vote, the Appellate Division of state Supreme Court, Fourth Department, affirmed the convictions.

Leonard’s appellate lawyer argued that a defense motion to suppress the gun evidence and Leonard’s statements to the police should have been granted.

“We reject that contention,” the majority wrote.

According to the decision, police responded to a 911 call reporting that a parolee who was wanted on a warrant and known to possess guns was a passenger in a certain vehicle.

Officers found a car matching the description given by the 911 caller and followed it, according to the decision. After the car stopped at a curb, with Leonard standing outside the vehicle, police approached him, and he ran away while holding the left side of his waistband.

As he was being chased, Leonard threw a black object, believed to be a handgun, over a fence. He was caught and a gun was found where the officer saw Leonard throw an object, according to the decision.

“The court properly determined that the officers had at least an objective, credible reason to approach defendant and request information,” the court wrote.

“Defendant’s subsequent flight with his hand on his waistband from the approaching officer, combined with the 911 caller’s report about a wanted violent parolee who was potentially armed, and the police officers’ observations confirming the vehicle and suspect descriptions from the 911 call, provided the officers with reasonable suspicion to pursue defendant,” the majority wrote.

Voting with the majority were justices John V. Centra, Patrick H. NeMoyer and John M. Curran. Justices Stephen K. Lindley and Nancy E. Smith dissented.

Smith and Linley voted to reverse the convictions for second-degree criminal possession of a weapon but affirm the conviction for attempted second-degree criminal possession of a weapon.

“We respectfully dissent because …. the People failed to establish that the arresting officer’s initial pursuit of defendant was lawful,” Smith and Lindley wrote.

“In our view, the information provided by the informant, standing alone, clearly did not provide reasonable suspicion to believe that defendant possessed a weapon or had committed any other crime,” the minority wrote.

“The informant did not say that he saw defendant with a gun … Informant merely said that his parole officer told him that defendant, whom the informant did not know, was very dangerous and known to carry weapons,” Lindley and Smith wrote.

“It is unclear whether, as the suppression court found, the officer observed defendant grabbing his waistband before the officer pursued him,” the minority wrote.

“We do not think that the People met their burden of establishing that the pursuit was justified based on the officer’s belief that defendant may have possessed a weapon.”

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