| People v Tillery |
| 2009 NY Slip Op 01887 [60 AD3d 1203] |
| March 19, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v CarltonTillery, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered March 20, 2008, upon a verdict convicting defendant of the crime of criminalpossession of a weapon in the second degree.
Two police officers, Sean Slingerland and Milton Johnson, working in plainclothes anddriving an unmarked car, encountered four males (including defendant) standing in a street nextto a Honda blocking traffic while talking to someone in another vehicle. After a short delay, themales moved from the middle of the street, allowing the officers to pass. As they were slowlypassing, the officers heard one individual yell to another to "bring that shit over here" and thenobserved defendant remove a two-to-three-foot toy alligator from the back seat of the Honda.One of the individuals in the group ostensibly then directed defendant's attention to the officers'vehicle and he quickly tossed the toy alligator back into a rear seat of the Honda.
The officers parked, exited their vehicle and asked the group of males, who were back in thestreet, to step out of the street and onto the sidewalk. According to Johnson, he observeddefendant reach for his pocket three times and, each time, instructed him to remove his handfrom his pocket. After the third time, he asked defendant why he kept reaching for his pocket anddefendant stated that he had bullets in his pocket. Upon hearing about bullets, Johnson inquiredabout a gun and defendant responded that one was located in the car. Slingerland [*2]looked in the Honda and saw the stuffed alligator with a sawed-off12-gauge shotgun sticking out of it. Johnson patted down defendant and removed five shotgunshells from his right front pocket.
The sawed-off barrel was less than 18 inches and, accordingly, defendant was indicted onone count of criminal possession of a weapon in the second degree (see Penal Law§ 265.03 [3]; see also Penal Law § 265.00 [3]). Following a combinedHuntley/Dunaway/Mapp hearing, County Court denied defendant's suppression motion.A jury trial ensued and defendant was convicted of the charged crime. He was sentenced to aprison term of nine years with three years of postrelease supervision, and now appeals.
We consider first defendant's contention that his statements and the evidence thereafterseized resulted from an unlawful search and seizure by police. Street encounters initiated bypolice are governed by the well-established graduated four-level test in which, generally stated,the level of permissible intrusion increases with the level of evidence of criminality (see People v Moore, 6 NY3d 496,498-499 [2006]; People v De Bour, 40 NY2d 210, 223 [1976]; People v Hill, 30 AD3d 687, 687[2006]; People v Siler, 288 AD2d 625, 625 [2001], lv denied 97 NY2d 709[2002]). These encounters can be "dynamic situations during which the degree of beliefpossessed at the point of inception may blossom by virtue of responses or other matters whichauthorize . . . additional action as the scenario unfolds" (People v De Bour,40 NY2d at 225; see People v Clark, 237 AD2d 372, 372 [1997], lv denied 90NY2d 856 [1997]).
Here, evidence credited at the suppression hearing established that police had an objective,credible reason for approaching and speaking to defendant since he and his companions werepartially blocking a street. The request that defendant not place his hand in his pocket as hemoved toward the officer was a de minimis intrusion and a reasonable safety measure.Defendant's continued placing of his hand in the pocket elicited a reasonable inquiry as to whyhe was doing so. In answer to that question, defendant acknowledged bullets in his pocket, whichelevated the level of permissible inquiry. Defendant then indicated that a gun was in the car, andSlingerland looked through the car window where, in open view, he could see the shotgunsticking out of the alligator, which provided probable cause to arrest defendant. Deferring toCounty Court's assessment of the witnesses' credibility (see People v Hunter, 270 AD2d712, 713 [2000]), the police conduct was proper.
We find without merit defendant's assertion that his statements about bullets in his pocketand a gun in the car should have been suppressed since they were given before he receivedMiranda warnings. Such warnings are required before a custodial interrogation (see e.g. People v Paulman, 5 NY3d122, 129 [2005]). The credible evidence at the suppression hearing reveals that defendantwas not in custody prior to when he volunteered this information.
We are unpersuaded by defendant's argument that his conviction was not supported bylegally sufficient evidence and was against the weight of the evidence. The People were requiredto prove that defendant possessed a loaded firearm in a place that was not his home or business(see Penal Law § 265.03 [3]). A "firearm" includes "a shotgun having one or morebarrels less than eighteen inches in length" (Penal Law § 265.00 [3]), and the term "loadedfirearm" includes "any firearm which is possessed by one who, at the same time, possesses aquantity of ammunition which may be used to discharge such firearm" (Penal Law §265.00 [15]). There was evidence at trial that the shotgun barrel had been sawed off to less than18 inches, the gun was operable, the ammunition in defendant's pocket could be used in thatweapon and the police [*3]saw defendant possessing the toyalligator in which the weapon had been placed. Viewed most favorably to the People, theevidence is legally sufficient since there was a valid line of reasoning and permissible inferencesfor a rational person to arrive at the conclusion reached by the jury (see People vBleakley, 69 NY2d 490, 495 [1987]). Having also independently weighed and consideredthe evidence in a neutral light, we find the verdict supported by the weight of the evidence (see People v Danielson, 9 NY3d342, 348 [2007]; People vRomero, 7 NY3d 633, 643-645 [2006]).
Defendant argues that the prosecutor made several improper statements during summationthat deprived him of a fair trial. During summation, defendant objected to the prosecutor'scomment that two police officers saw him carrying "that particular item." He contended thatthere was no evidence that the officers saw him carrying the gun. However, the prosecutor'scomment, considered in context, related to seeing defendant carrying the toy alligator, in whichthe gun had been placed. Moreover, when defendant objected, County Court instructed the jurorsthat their recollection of the evidence controlled. This did not constitute the type of conduct forwhich reversal would be warranted (cf.People v Wlasiuk, 32 AD3d 674, 681 [2006], appeal dismissed 7 NY3d 871[2006]; People v De Vito, 21 AD3d696, 700 [2005]; People v Russell, 307 AD2d 385, 386-387 [2003]). The otherallegedly improper comments by the prosecutor were not preserved by a timely objection at trial(see People v Westervelt, 47 AD3d969, 974 [2008], lv denied 10 NY3d 818 [2008]) and, in any event, would notrequire reversal. Defendant's remaining arguments, including that he did not receive the effectiveassistance of counsel, have been considered and found unavailing.
Mercure, J.P., Rose, Kane and Malone Jr., JJ., concur. Ordered that the judgment is affirmed.