*1 Defendant, David Lamar Brock, is charged by the above-referenced Indictment with one count of Criminal Possession of a Weapon in the Second Degree, in violation of Section 265.03(3) of the Penal Law. The defendant moved the Court for an order suppressing tangible evidence and statements. The court granted a Mapp/Huntley hearing. The combined hearing was held on November 15, 2017. The People presented the testimony of Officers Paul Helfer*2
and Daniel Rizzo of the Rochester Police Department (“RPD”). The defense did not present witnesses. The court did not make findings of fact and conclusions of law at the close of the proceedings.The Court has reviewed the hearing transcript and evidence admitted. After due consideration of the evidence and law, the Court makes the following findings of fact and conclusions of law based upon the credible evidence received during the hearing.Findings of FactHaving observed the witnesses and considered the exhibits in evidence, the credible testimony at the hearing established the following. On August 30, 2017 at 8:49 p.m., Officer Daniel Rizzo, a 5 year police veteran was on patrol in a marked RPD vehicle heading east bound on Avenue A in the City of Rochester, New York, approaching the intersection of Roth Street. That intersection was well known to officer Rizzo as an open-air illegal drug market and frequent location of violence. Officer Rizzo testified it was dark, but there were street lights in the area.As he turned south onto Roth Street, he observed a vehicle parked on Roth Street near the southwest corner of Avenue A and Roth Street. He observed two females and two to three males standing outside the drivers’ side, or east side of the vehicle. He also observed David Lamar Brock, identified as the defendant, a person well known to Officer Rizzo from approximately twenty previous face to face encounters. Officer Rizzo testified that he’d seen defendant daily at this intersection. In those encounters, Officer Rizzo never found marijuana on defendant, cannot remember locating anything illegal on him, and never arrested him. Officer Rizzo’s encounters with defendant prior to August 30, 2017 consisted of asking defendant questions.As Officer Rizzo slowed his car approximately 20 feet behind the southbound facing parked vehicle, he observed defendant reach into the vehicle, appear to grab something and put it in his pants area and quickly take a few steps away from the vehicle in a south bound direction. Defendant then changed direction and began to run in a northwest direction through a vacant lot. He observed defendant make a throwing motion with his left arm when he started running, but did not see anything thrown. As defendant ran he appeared to be attempting to take something out of his pockets. Officer Rizzo did not actually see anything in defendant’s hands at any time.
