People v. May (241 A.D.2d 351, 1997)

Judgment, Supreme Court, New York County (Ronald Zweibel, J., at hearing; Bonnie Wittner, J., at jury trial and sentencing), rendered June 10, 1994, convicting defendant of criminal possession of a weapon in the third degree, and sentencing him, as a second violent felony offender, to a term of 3V2 to 7 years, unanimously affirmed.

Based on the increasingly suspicious behavior of defendant and his companions in and near the supermarket and on the fact that they matched a general description of suspects who had been committing store robberies in the area, the police officers had reasonable suspicion that the three men had been planning to rob the store, warranting the nearby stop of the vehicle in which defendant and one companion were riding (see, Terry v Ohio, 392 US 1, 27-28). In any event, defendant’s tossing of the gun out the window, which occurred several minutes after the car had been pulled over, was an abandonment independent of any police conduct (People v Boodle, 47 NY2d 398, cert denied 444 US 969).

The court’s supplemental instruction to the jury, read as a whole, did not shift the burden of proof or permit the jury to speculate about facts not in evidence. Concur—Milonas, J. P., Nardelli, Williams, Mazzarelli and Andrias, JJ.