| People v Rogers |
| 2012 NY Slip Op 01488 [92 AD3d 903] |
| February 21, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Deshawn Rogers, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, andBruce Alderman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Balter, J.),rendered June 2, 2010, convicting him of criminal possession of a weapon in the second degree(two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing, of that branch of the defendant's omnibus motion which was to suppresscertain evidence.
Ordered that the judgment is affirmed.
According to testimony adduced at a suppression hearing, in the early morning of May 9,2009, several police officers conducted a "vertical" patrol of a building at the Bushwick Housesin Brooklyn. The officers were in plain clothes and displayed their shields on a chain around theirnecks. While in the courtyard prior to entering the building, a sergeant observed the defendantremove what appeared to be a firearm from his waistband. The sergeant yelled "gun." Thedefendant saw the sergeant and fled into the building and up a stairwell, pursued by the sergeant.On the first floor landing, the defendant dropped the gun, and the sergeant recovered it beforeapprehending the defendant. The hearing court credited the sergeant's testimony and denied thatbranch of the defendant's omnibus motion which was to suppress the gun, as well as otherphysical evidence.
"The credibility determinations of a hearing court are entitled to great deference on appeal,and will not be disturbed unless clearly unsupported by the record" (People v Martinez, 58 AD3d 870,870-871 [2009]; see People v Prochilo, 41 NY2d 759, 761 [1977]). Contrary to thedefendant's contention, on this record, there is no basis to disturb the hearing court's finding thatthe sergeant observed the defendant remove what appeared to be a firearm from his waistbandprior to the defendant's flight and the sergeant's pursuit. The hearing testimony established thatthe sergeant had reasonable suspicion to pursue the defendant and, thus, the defendant'sabandonment of the gun was not the product of an unlawful police pursuit (see People v Stephenson, 89 AD3d872 [2011]; People vWashington, 81 AD3d 991, 992 [2011]; cf. People v Brogdon, 8 AD3d 290, 291-292 [2004]).
The defendant's claims that the prosecutor conducted improper cross-examinations of twodefense witnesses are unpreserved for appellate review (see CPL 470.05 [2]; People vGill, [*2]54 AD3d 965 [2008]; People v Jones, 46 AD3d 840[2007]), and we decline to review them in the exercise of our interest of justice jurisdiction.
The defendant contends that certain of the prosecutor's comments on summation deprivedhim of a fair trial. The defendant failed to preserve for appellate review his contentions withrespect to all of the challenged comments except two remarks which concerned the credibility ofthe officers who testified (see CPL 470.05 [2]; People v Romero, 7 NY3d 911, 912 [2006]; People v Brown, 48 AD3d 590,591 [2008]; People v Salnave, 41AD3d 872, 874 [2007]). In any event, most of the challenged remarks were either responsiveto the defense counsel's summation or fair comment upon the evidence. To the extent that someof the remarks were improper, they were not so flagrant or pervasive as to deny the defendant afair trial, and thus, reversal is not warranted (see People v Banyan, 60 AD3d 861 [2009]; People v Almonte, 23 AD3d 392,394 [2005]). Mastro, A.P.J., Angiolillo, Eng and Cohen, JJ., concur.