| People v McCoy |
| 2007 NY Slip Op 10208 [46 AD3d 1348] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Carl J.McCoy, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Jessica Birkahn of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), renderedAugust 18, 2004. The judgment convicted defendant, upon a jury verdict, of criminal possessionof a weapon in the third degree (two counts).
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of two countsof criminal possession of a weapon in the third degree (Penal Law § 265.02 [1], [4]),defendant contends that County Court erred in refusing to suppress evidence and statements hemade to the police because they lacked reasonable suspicion to pursue him and probable cause toarrest him. We reject that contention. After hearing a radio broadcast that was based uponinformation gathered by his fellow officers during the investigation of a robbery, the officerapproached defendant to question him about his presence near the scene of the robbery.Defendant then fled on foot, and we conclude that his flight "combined with those other specificcircumstances indicative of criminality on his part [communicated by the radio broadcast], gaverise to reasonable suspicion justifying the officer's pursuit of defendant" (People vNesmith, 289 AD2d 1049 [2001], lv denied 97 NY2d 758 [2002]; see People vHolmes, 81 NY2d 1056, 1057-1058 [1993]). In addition, the officer testified at thesuppression hearing that defendant was repeatedly looking over his shoulder at the officer andsticking his hand into his pocket while fleeing, which led the officer to believe that defendantpossessed a weapon (see generallyMatter of Al F., 17 AD3d 141 [2005]). Contrary to the contention of defendant, he wasnot under arrest at the time that he was handcuffed and placed in a police vehicle for aninvestigatory detention (see People vGalloway, 40 AD3d 240 [2007], lv denied 9 NY3d 844 [2007]; People v Gatling, 38 AD3d 239[2007], lv denied 9 NY3d 865 [2007]; see also People v Oglesby, 15 AD3d 888, 889 [2005], lvdenied 4 NY3d 855 [2005]; seegenerally People v White, 35 AD3d 1263, 1264 [2006], lv denied 8 NY3d 951[2007]). The police had probable cause to arrest defendant when they discovered a loaded gun ina ravine along defendant's flight path (see People v Williams, 28 AD3d 1095 [2006], lv denied 7NY3d 765 [2006]).
We reject the further contention of defendant that the court erred in denying his motion todismiss the jury pool on the ground that it did not reflect a fair cross section of the community.[*2]Defendant "failed to set forth sufficient facts demonstrating asystematic exclusion of African-Americans from the jury pool" (People v Owens, 39 AD3d 1260,1260 [2007], lv denied 9 NY3d 849 [2007]; see People v Cotton, 38 AD3d 1189 [2007], lv denied 8NY3d 983 [2007]). Contrary to the further contention of defendant, there were no Batsonviolations. The People offered race-neutral reasons for each peremptory challenge at issue,and the reasons were not pretextual (see generally People v Smocum, 99 NY2d 418, 422[2003]; People v Allen, 86 NY2d 101, 109-110 [1995]). Specifically, the Peopleexplained that they used peremptory challenges with respect to two Hispanic prospective jurorswho they believed would likely be sympathetic toward defendant. One of those prospectivejurors was the friend of a convicted murderer and had recently visited another friend in jail, andthe other had recently visited her uncle in jail (see People v Ball, 11 AD3d 904, 905 [2004], lv denied 3NY3d 755 [2004], 4 NY3d 741 [2004]; People v Cuthrell, 284 AD2d 982 [2001]; seealso People v Feliciano, 228 AD2d 519 [1996], lv denied 88 NY2d 1068 [1996]).
The court also properly denied defendant's request to charge the jury with the defense oftemporary innocent possession of a weapon inasmuch as "there was no reasonable view of theevidence upon which the jury could have found that the defendant's possession was innocent" (People v Johnson, 30 AD3d 439[2006], lv denied 7 NY3d 813 [2006]). The evidence established that, rather than takingthe opportunity to relinquish the gun to the police officer, defendant instead chose to flee on foot,and he threw the gun into a ravine. Defendant's conduct was thus " 'utterly at odds with any claimof innocent possession' " (People vSheehan, 41 AD3d 335, 335 [2007], quoting People v Williams, 50 NY2d 1043,1045 [1980]; see People v Gonzalez, 262 AD2d 1061 [1999], lv denied 93 NY2d1018 [1999]).
We have reviewed defendant's remaining contentions and conclude that they are withoutmerit. Present—Hurlbutt, J.P., Gorski, Martoche, Lunn and Peradotto, JJ.