| People v Simmons |
| 2017 NY Slip Op 07211 [30 NY3d 957] |
| October 17, 2017 |
| Court of Appeals |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, December 13, 2017 |
| The People of the State of New York, Respondent, v John R. Simmons, Appellant. |
Decided October 17, 2017
David C. Schopp, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of counsel), for appellant.
John J. Flynn, District Attorney, Buffalo (Julie Bender Fiske of counsel), for respondent.
Memorandum.
The order of the Appellate Division should be affirmed. The determination regarding a founded suspicion of criminality, justifying the arresting officer's demand that [*2]defendant "show his hands," involves a mixed question of law and fact (see People v Mercado, 25 NY3d 936, 937 [2015]; People v Valerio, 95 NY2d 924, 925 [2000]). Based on the police officer's experience handling gun cases, the high crime rate and gang violence in the patrol area, the recent reports of gunshots fired near the location where defendant was first observed, and defendant's clutching of his waistband, there is record evidence to support a finding of founded suspicion. The totality of these circumstances provides sufficient indicia of criminality to warrant a level-two inquiry under People v De Bour (40 NY2d 210, 223 [1976]). Therefore, the determinations made below are beyond our further review.
Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Garcia, Wilson and Feinman concur.
Order affirmed, in a memorandum.