Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, CARNI, and LINDLEY, JJ. MEMORANDUM:
We previously held this case, reserved decision, and remitted the matter to County Court to determine, in the context of defendant's contention that the court erred in denying his suppression motion, “whether the police engaged in a pursuit and if so, whether that pursuit was legal” ( People v. Rainey, 110 A.D.3d 1464, 1466, 972 N.Y.S.2d 782). Upon remittal, the court found that the police officers were not in pursuit of defendant when he discarded the drugs, and we now affirm. The court properly concluded that the police officers were engaged in mere observation, which does not require reasonable suspicion ( see People v. Howard, 50 N.Y.2d 583, 592, 430 N.Y.S.2d 578, 408 N.E.2d 908, cert. denied 449 U.S. 1023, 101 S.Ct. 590, 66 L.Ed.2d 484). The testimony at the suppression hearing established that defendant's freedom of movement was not restricted because the police officer who followed defendant did not draw his gun, did not prevent defendant from moving, and did not give any verbal commands to defendant until after defendant dropped the plastic bag containing drugs ( see People v. Bora, 83 N.Y.2d 531, 535–536, 611 N.Y.S.2d 796, 634 N.E.2d 168; Howard, 50 N.Y.2d at 592, 430 N.Y.S.2d 578, 408 N.E.2d 908).
Defendant's sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
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