People v. Clea: Limiting Penal Law § 265.09(2) to the Indicted Predicate Class B Felony with a Proven Display of a Loaded, Operable Weapon

Introduction

In People v. Clea, 2025 NY Slip Op 05590 (4th Dept Oct. 10, 2025), the Appellate Division, Fourth Department, affirmed a multi-count conviction arising from a shooting during a home invasion but modified the sentence in a significant way. The court vacated a series of additional consecutive five-year terms the trial court imposed under Penal Law § 265.09(2), the sentence enhancement tied to a conviction for criminal use of a firearm in the first degree. The decision clarifies three critical limits on that enhancement:

• It may be imposed only on the “underlying class B violent felony offense” that was actually charged and used as the predicate for the criminal use of a firearm count.
• It cannot apply where the predicate Class B felony has a firearm use/display/armed-with-a-deadly-weapon element barred by People v. Brown, 67 NY2d 555 (1986).
• It requires a jury finding (or equivalent basis in the record) that the defendant displayed a loaded, operable weapon in furtherance of the predicate felony; mere possession is insufficient.

Beyond sentencing, the Fourth Department rejected the defendant’s suppression arguments, upholding the police pursuit and arrest based on a BOLO description, flight, proximity to the crime, furtive conduct, and ultimately probable cause upon observing blood on the defendant’s pants. The court also found the verdict was not against the weight of the evidence, including the intent element on the attempted murder count. As modified, the sentence was not unduly harsh or severe.

Summary of the Opinion

The defendant, convicted after jury trial of attempted murder in the second degree, first-degree burglary (two counts), first-degree robbery, first-degree assault, first-degree criminal use of a firearm, and second-degree criminal possession of a weapon, challenged (1) the denial of suppression, (2) the weight of the evidence on identity and intent to kill, and (3) the imposition of multiple five-year add-ons under Penal Law § 265.09(2).

The Fourth Department:

• Deemed a technically flawed notice of appeal valid under CPL 460.10(6).
• Affirmed the denial of suppression, holding the officers had a founded suspicion for a common-law inquiry based on the BOLO and observations, which escalated to reasonable suspicion upon the defendant’s flight and furtive conduct, and ripened into probable cause upon observing blood on the defendant’s pants near the scene.
• Rejected weight-of-evidence challenges to identity and intent to kill, citing overwhelming circumstantial proof.
• Modified the judgment by vacating the additional, consecutive five-year sentences imposed under Penal Law § 265.09(2) on five counts (attempted murder 2d, burglary 1st [both counts], robbery 1st, assault 1st). The enhancement could not be imposed on non-predicate class B felonies, on counts containing a firearm element barred by Brown, or without a jury finding of display of a loaded, operable firearm on the actual predicate felony.
• Affirmed the sentence as modified as not unduly harsh or severe.

Analysis

1) Precedents Cited and Their Influence

• Appellate procedure and scope of review:
  • CPL 460.10(6) and People v. McCants, 239 AD3d 1306 (4th Dept 2025): A notice of appeal with a non-prejudicial defect (incorrect judgment date) may be treated as valid in the interest of justice.
  • People v. Johnson, 192 AD3d 1612 (4th Dept 2021); People v. Jennings, 295 AD2d 1000 (4th Dept 2002); People v. Millan, 69 NY2d 514 (1987); People v. Gonzalez, 55 NY2d 720 (1981): Appellate review of suppression rulings is confined to the evidence at the suppression hearing, not trial testimony.
• Street encounters and escalation of police authority:
  • People v. Williams, 30 AD3d 980 (4th Dept 2006); People v. Dogan, 154 AD3d 1314 (4th Dept 2017); People v. Mitchell, 118 AD3d 1417 (4th Dept 2014); People v. Sierra, 83 NY2d 928 (1994): BOLO match, temporal and spatial proximity, furtive behavior, and headlong flight can provide reasonable suspicion to pursue. This anchored the court’s approval of the chase and stop.
  • People v. Schollin, 255 AD2d 465 (2d Dept 1998); People v. Betancourt, 153 AD2d 750 (2d Dept 1989): Observation of blood on the suspect’s clothing near the scene supports probable cause.
• Weight-of-evidence review:
  • People v. Danielson, 9 NY3d 342 (2007); People v. Bleakley, 69 NY2d 490 (1987): Provide the framework for weight-of-evidence review.
  • People v. Renaldo, 239 AD3d 1470 (4th Dept 2025); People v. Lacey, 229 AD3d 1270 (4th Dept 2024); People v. Malone, 196 AD3d 1054 (4th Dept 2021); People v. Isaac, 195 AD3d 1410 (4th Dept 2021): Circumstantial evidence can be overwhelming; identity findings upheld.
  • People v. Thomas, 176 AD3d 1639 (4th Dept 2019); People v. Carter, 188 AD3d 1674 (4th Dept 2020): Intent to kill may be inferred from facts; attempted murder conviction affirmed on weight.
• Firearm enhancement under Penal Law § 265.09:
  • People v. Brown, 67 NY2d 555 (1986): Where “use or display of a firearm” is an element of the underlying class B felony, that same firearm conduct cannot double as the predicate for criminal use of a firearm in the first degree; applied here to bar using class B felonies with firearm elements as the “underlying” offense for § 265.09.
  • People v. Wegman, 2 AD3d 1333 (4th Dept 2003); People v. Merriweather, 298 AD2d 950 (4th Dept 2002): Follow and apply Brown.
  • People v. Rhodes, 281 AD2d 225 (1st Dept 2001): Challenges to the legality of a sentence need not be preserved; § 265.09(2) enhancement attaches only to the “underlying class B violent felony,” and the record must show that the defendant displayed a loaded, operable weapon in furtherance of that felony.
  • People v. Samms, 95 NY2d 52 (2000): An illegal sentence may be challenged without preservation.
  • People v. Argueta, 194 AD3d 857 (2d Dept 2021): A conviction under § 265.09(1)(a) (possession of a loaded operable weapon during a class B violent felony) does not itself establish the distinct “display” element required to trigger the five-year add-on in § 265.09(2).
  • Legislative history: Governor’s Approval Memorandum, Bill Jacket, L 1996, ch 650, at 9: underscores the Legislature’s focus on punishing the “display of a loaded, operable firearm” in furtherance of the predicate felony, reinforcing the need for a record-supported finding.

2) The Court’s Legal Reasoning

Suppression: From BOLO to founded suspicion, to reasonable suspicion, to probable cause

The officer received a BOLO (be-on-the-lookout) minutes after the shooting, describing the suspect as a shorter Black male with a beard wearing a white t-shirt. Near the crime scene and within minutes, the officer saw the defendant matching that description, pacing, scanning his surroundings, and ducking between parked cars upon noticing the patrol car. No other matching individuals were present. These facts created a founded suspicion of criminality, warranting a level-three common-law inquiry. Before the officer could approach, the defendant fled. The court held that flight—combined with the BOLO match, temporal and spatial proximity, and furtive behavior—supplied reasonable suspicion to justify pursuit. After the defendant was apprehended in the backyard of the residence where the shooting occurred, officers observed blood on his pants, which elevated reasonable suspicion to probable cause to arrest. The suppression motion was therefore correctly denied, and appellate review was confined to the suppression hearing record, not the trial record.

Weight of the Evidence: Identity and Intent to Kill

Applying the Danielson/Bleakley framework and viewing the proof as charged to the jury, the court concluded that the identity finding was supported by overwhelming circumstantial evidence. The attempted murder count survived weight-of-evidence review on the element of intent to cause death, which could be inferred from the nature and location of the gunshot wounds and surrounding circumstances.

Sentencing: The § 265.09(2) five-year enhancement

The heart of Clea lies in the careful parsing of Penal Law § 265.09. The defendant was convicted under § 265.09(1)(a) (criminal use of a firearm in the first degree) which requires that, in committing a class B violent felony, the defendant possesses a loaded firearm readily capable of producing death or serious injury. Section 265.09(2) adds:

“Notwithstanding any other provision of law to the contrary, when a person is convicted of criminal use of a firearm in the first degree as defined in [§ 265.09(1)], the court shall impose an additional consecutive sentence of five years to the sentence imposed on the underlying class B violent felony offense where the person convicted of such crime displays a loaded weapon from which a shot, readily capable of producing death or other serious injury, may be discharged, in furtherance of the commission of such crime.” (Emphasis added.)

The Fourth Department imposed three decisive limits:

• Only the indicted-and-charged predicate class B felony can be enhanced. The five-year add-on attaches to “the underlying class B violent felony offense” that actually serves as the predicate for the § 265.09(1) conviction. Here, attempted murder in the second degree (count 1) and assault in the first degree (count 7) were not charged as predicates for the criminal use count and therefore could not be enhanced.
• No enhancement where the underlying class B felony itself has a firearm element barred by Brown. Because “use or display of a firearm” (or being armed with a deadly weapon) is an element of certain class B felonies—such as burglary in the first degree under § 140.30(1) and robbery in the first degree under § 160.15(2)—those counts cannot be the predicate for a § 265.09 conviction under Brown, and by extension cannot receive the § 265.09(2) add-on as “underlying” offenses.
• A record-supported jury finding of “display of a loaded, operable firearm in furtherance” is required. Even for the one count that could theoretically serve as the predicate—burglary in the first degree under § 140.30(2) (causing physical injury), which does not contain a firearm element—the record did not show that the jury found the defendant “displayed a loaded [operable] weapon” in furtherance of that burglary. A conviction under § 265.09(1)(a) (possession of a loaded operable weapon during the class B felony) does not, by itself, establish the distinct “display” required for the add-on. With the victim unable to recall the events of the shooting and no other evidence establishing a display in furtherance, the statutory condition for the extra five years was unsatisfied.

On that basis, the Fourth Department vacated the additional consecutive five-year terms on counts 1, 2, 3, 5, and 7, and otherwise affirmed the judgment, concluding that the sentence as modified was not unduly harsh or severe.

3) Impact and Practical Implications

Charging and Trial Practice

• Prosecutors seeking a § 265.09(2) add-on must clearly designate in the indictment and jury charge the specific class B violent felony that serves as the predicate for the § 265.09(1) count.
• Predicates that themselves include firearm use/display/armed-with-a-deadly-weapon elements (e.g., certain robbery first and burglary first subdivisions) are incompatible with § 265.09 predication under Brown, and therefore cannot be the “underlying” offense for the five-year enhancement.
• To trigger § 265.09(2), the People must secure a jury finding that the defendant “displayed a loaded, operable weapon” in furtherance of the predicate felony. Because § 265.09(1)(a) does not require “display,” a separate instruction and a clear verdict basis may be necessary. Absent such a finding, the add-on is legally impermissible.

Sentencing

• Trial courts should confine any § 265.09(2) enhancement to the single “underlying class B violent felony offense” actually used as the § 265.09(1) predicate and only upon a record that the jury found a display of a loaded, operable firearm in furtherance.
• Sentencing “stacking” of multiple five-year add-ons across various class B felonies is improper unless each enhanced count independently qualifies as the indicted predicate and satisfies the statutory display requirement—which Clea makes clear will rarely, if ever, be the case.
• Because the issue concerns the legality of sentence, it may be raised on appeal without preservation.

Defense Strategy

• Scrutinize whether the enhanced count is actually the indicted predicate for the § 265.09(1) conviction. If not, the enhancement is illegal.
• Identify whether the supposed predicate class B felony carries a firearm element barred by Brown, which precludes § 265.09 predication and, by extension, the § 265.09(2) add-on.
• Examine the record and verdict sheet for a jury finding of “display of a loaded, operable weapon in furtherance.” If the jury was never asked—or if the evidence does not establish display—the enhancement cannot stand.

Police Encounters

• Clea reaffirms that a timely BOLO match, spatial-temporal proximity, and observable furtive behavior can justify escalation from a common-law inquiry to reasonable suspicion, especially when paired with flight.
• Probable cause may arise upon observation of incriminating circumstances such as blood on clothing near the crime scene.

Complex Concepts Simplified

• BOLO: “Be-on-the-lookout” broadcast to officers describing a suspect. A close match, near in time and place to the crime, can support investigative escalation.
• Founded suspicion vs. reasonable suspicion vs. probable cause:
  • Founded suspicion permits a common-law inquiry (non-forcible questioning).
  • Reasonable suspicion justifies pursuit and a stop when specific, articulable facts suggest a person has committed, is committing, or is about to commit a crime (e.g., BOLO match plus flight and furtive conduct near the scene).
  • Probable cause authorizes arrest when the facts would lead a reasonable person to believe a crime was committed by the suspect (e.g., blood on pants at the crime scene moments after a shooting).
• Criminal use of a firearm, Penal Law § 265.09(1)(a): Committing a class B violent felony while possessing a loaded firearm readily capable of producing death or serious injury. This provision focuses on possession during the class B felony.
• Five-year enhancement, Penal Law § 265.09(2): Adds five years to the sentence for the “underlying class B violent felony” when, in furtherance of that felony, the defendant displays a loaded, operable firearm. “Display” is distinct from mere possession and must be supported by the record and jury finding.
• Underlying class B violent felony offense: The specific class B violent felony designated in the indictment and jury instructions as the predicate for the § 265.09(1) charge. Only this count can be enhanced under § 265.09(2).
• Brown bar (People v. Brown): If the class B felony itself includes firearm use/display (or being armed with a deadly weapon) as an element, that firearm conduct cannot also serve as the predicate for § 265.09, preventing the enhancement from attaching to such a count.

Conclusion

People v. Clea is a consequential sentencing decision that tightens the conditions for imposing New York’s five-year firearm enhancement under Penal Law § 265.09(2). The Fourth Department makes plain that the add-on:

• Attaches only to the indicted-and-charged predicate class B violent felony for the § 265.09(1) conviction;
• Cannot be used where the predicate class B felony has a firearm element barred by Brown;
• Requires a jury finding (or equivalent record basis) that the defendant displayed a loaded, operable weapon in furtherance of that predicate felony.

In addition, the opinion reinforces familiar but important principles: suppression review is confined to the hearing record; flight and BOLO-based pursuit can meet reasonable suspicion; and circumstantial cases can furnish overwhelming proof of identity and intent. For prosecutors, Clea necessitates careful charging decisions and precise jury instructions if the § 265.09(2) enhancement is sought. For defense counsel, it offers a robust framework for challenging illegal sentence add-ons. For trial courts, it provides a clear roadmap to ensure enhancements are imposed only when the statute’s textual prerequisites are satisfied.

As modified, the judgment was affirmed, and the case stands as the Fourth Department’s leading articulation of the strict limits governing § 265.09(2). Its practical takeaway is straightforward: no enhancement without the right predicate and a proven, jury-found display of a loaded, operable firearm in furtherance of that predicate felony.