| People v Reed |
| 2007 NY Slip Op 08553 [45 AD3d 1333] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Benji D. Reed,Appellant. |
—[*1] Benji D. Reed, defendant-appellant pro se. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), renderedSeptember 16, 2004. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a weapon in the third degree (four counts), resisting arrest, harassment in thesecond degree, and aggravated unlicensed operation of a motor vehicle in the third degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of,inter alia, four counts of criminal possession of a weapon in the third degree (Penal Law §265.02 [1], [3], [4], [5] [ii]). Defendant was observed driving a vehicle by two police officers,one of whom knew that defendant's driver's license was suspended. After the officers pulled overthe vehicle and arrested defendant for driving without a license, the officers attempted to performa pat-down search. Defendant resisted and, according to the testimony of the officers, defendantreached into his waistband during the course of the ensuing struggle and made a motion thatindicated to the officers that he had thrown something toward the rear of the vehicle. Althoughneither officer observed anything in defendant's hand, both officers heard a sound that wassimilar to the sound of metal skidding along the ground, and one of the officers then found ahandgun underneath the bumper of the vehicle. In view of the testimony of the officers, we rejectthe contention of defendant that the conviction of the four counts of criminal possession of aweapon is not supported by legally sufficient evidence (see generally People v Bleakley,69 NY2d 490, 495 [1987]). Defendant further contends that the evidence is legally insufficient tosupport the conviction under the third count of the indictment because the People failed toestablish that he knew that the handgun had been defaced (see § 265.02[3]), and he contends that the second through fifth counts of the indictment were multiplicitous.Defendant failed to preserve those contentions for our review (see CPL 470.05 [2];People v Gray [appeal No. 1], 284 AD2d 1012 [2001], lv denied 97 NY2d 682[2001]), and we decline to exercise our power to review them as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]).[*2]
Although we agree with defendant that County Courterred in refusing to suppress ammunition found in the vehicle driven by him, we conclude thatthe error is harmless. The remaining evidence of defendant's guilt is overwhelming, and there isno significant probability that defendant otherwise would have been acquitted (see generallyPeople v Crimmins, 36 NY2d 230, 241-242 [1975]). We have reviewed the remainingcontentions of defendant in his pro se supplemental brief and conclude that they are withoutmerit. Present—Hurlbutt, J.P., Martoche, Smith, Centra and Fahey, JJ.