| People v Wilson |
| 2008 NY Slip Op 02296 [49 AD3d 1224] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MichaelWilson, Appellant. |
—[*1]
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.),rendered June 7, 2006. The judgment convicted defendant, upon a nonjury verdict, of criminalpossession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, following a nonjury trial,of criminal possession of a weapon in the third degree (Penal Law § 265.02 [former (4)]).Contrary to the contention of defendant, Supreme Court properly refused to suppress the gun thathe threw behind a couch as the police pursued him into the residence of an acquaintance. "[A]'defendant's flight may be considered in conjunction with other attendant circumstances' indetermining whether reasonable suspicion justifying a seizure exists" (People v Pines, 99NY2d 525, 527 [2002], quoting People v Martinez, 80 NY2d 444, 447-448 [1992]).Here, a police officer's observation of a gun in defendant's waistband in conjunction withdefendant's flight provided "reasonable suspicion that defendant may have been engaged incriminal activity justifying police pursuit" (People v Cruz, 14 AD3d 730, 732 [2005], lv denied 4NY3d 852 [2005]). Defendant's abandonment of the weapon during the ensuing police pursuitprovided the police with probable cause to arrest defendant (see People v Wilson, 5 AD3d 408, 409 [2004], lv denied 2NY3d 809 [2004]).
We reject defendant's further contention that the verdict is against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Finally, we reject thecontention of defendant that the court erred in denying his pro se motion to set aside the verdictpursuant to CPL 330.30 without conducting a hearing. In seeking that relief, defendant contendedthat the People failed to produce Brady material and that he was denied the right toeffective assistance of counsel based on defense counsel's failure to seek discovery of that allegedBrady material. "[O]nly a claim of error that is properly preserved for appellate reviewwill provide a basis to modify the verdict" (People v Thomas, 242 AD2d 281 [1997],lv denied 90 NY2d 1014 [1997]), and defendant's contention with respect to the People'sfailure to produce Brady material is not preserved for our review (see People v Thomas, 8 AD3d 303[2004], lv denied 3 NY3d 682 [2004]). Defendant's contention with respect to ineffectiveassistance of counsel involves matters outside the record on appeal, and thus the properprocedural vehicle for raising that claim is by way of a [*2]motion pursuant to CPL 440.10 (see People v Johnson, 24 AD3d1257 [2005], lv denied 6 NY3d 814 [2006]). Present—Hurlbutt, J.P., Smith,Centra, Green and Gorski, JJ.