| People v Johnson |
| 2008 NY Slip Op 04394 [51 AD3d 508] |
| May 13, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v MarkJohnson, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York City (Vincent Rivellese of counsel), forrespondent.
Judgment, Supreme Court, New York County (Charles H. Solomon, J., on suppressionmotion; Phillip M. Grella, J., at jury trial and sentence), rendered September 9, 2004, convictingdefendant of criminal possession of a weapon in the second degree and two counts of criminalpossession of a weapon in the third degree, and sentencing him, as a second felony offender, toconcurrent terms of 13 years, 7 years and 3½ to 7 years, respectively, unanimouslyaffirmed.
Following our remittitur to Supreme Court for a Mapp/Dunaway hearing (42AD3d 341 [2007]), the court conducted such a hearing, and it properly denied the motion tosuppress. The evidence presented at the hearing was substantially similar to the trial evidencerecounted in our prior decision. The hearing evidence also established that defendant wassweating very heavily as he frantically banged on the door. Although defendant's clothingdiffered from any of the clothing descriptions the police had received regarding an armed man,the police were also aware of reports that the dispute involved multiple armed men, and theyreasonably suspected that defendant was one of them. Defendant's behavior, and, in particular,his direction of flight as compared with that of other persons at the scene, suggested that, unlikethe others, he was fleeing from the police rather than escaping from danger. Accordingly, thepolice were entitled to forcibly detain defendant (see People v Casado, 43 AD3d 758 [2007], lv denied 9NY3d 1005 [2007]). Once defendant reached for his waistband, the officers' suspicions becameeven more elevated, providing them with further justification for conducting a pat down.
Turning to the issues defendant raised on his original appeal, which we held in abeyancepending a suppression hearing, we find no basis for reversal. The trial court properly exercised itsdiscretion in precluding, on the ground of excessive remoteness, evidence offered to establish amotive for the police to fabricate (see People v Thomas, 46 NY2d 100, 105 [1978],appeal dismissed 444 US 891 [1979]), and this ruling did not deprive defendant of anyconstitutional right (see Crane v Kentucky, 476 US 683, 689-690 [1986]; Delaware vVan Arsdall, 475 US 673, 678-679 [1986]). Although the trial court erred in ruling thatdefendant's testimony opened the door to a modification of its prior ruling that had precluded theprosecutor from questioning defendant about uncharged drug crimes, the error was harmless inlight of the overwhelming [*2]evidence of defendant's guilt(see People v Crimmins, 36 NY2d 230 [1975]).
We perceive no basis for reducing the sentence. Defendant's remaining claims relating to hissentence are without merit. Concur—Tom, J.P., Mazzarelli, Friedman, Williams andSweeny, JJ.