| People v Barrow |
| 2013 NY Slip Op 00931 [103 AD3d 745] |
| February 13, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Kareem Barrow, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M.Ross, and Bruce Alderman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Parker, J.), rendered January 5, 2011, convicting him of criminal possession of aweapon in the fourth degree, upon a jury verdict, and imposing sentence. The appealbrings up for review the denial, after a hearing (Mangano, Jr., J.), of that branch of thedefendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
The hearing court credited the arresting officer's testimony that he initiallyapproached the defendant because of his resemblance to an individual wanted by thepolice, based on that individual's "mug shot" photograph. We find no basis to disturb thatcredibility determination (seePeople v Wilson, 5 AD3d 408 [2004]). Based on the defendant's resemblance tothe wanted individual, the police had, at the very least, the right to approach him torequest information (see id.; People v Bethea, 239 AD2d 510 [1997];cf. People v Fields, 195 Misc 2d 84, 87-88 [2003]), and based on the defendant'spresence in an area the wanted individual was known to frequent, the police had thecommon-law right to inquire (see People v Brewer, 73 AD3d 1199, 1200 [2010]; seealso People v Smith, 220 AD2d 219 [1995]).
The defendant's subsequent flight when the officers asked if they could speak to himprovided reasonable suspicion to pursue and stop him (see People v Soscia, 96 AD3d1081 [2012]; People vDent, 94 AD3d 536, 536-537 [2012]; People v Wilson, 5 AD3d at 408;cf. People v Ross, 251 AD2d 1020, 1021-1022 [1998]), and his abandonment ofa gun during the chase therefore was not a result of improper police activity (seePeople v Martinez, 80 NY2d 444, 448-449 [1992]; People v Rogers, 92 AD3d903, 904 [2012]).Accordingly, the hearing court properly denied that branch of the defendant's omnibusmotion which was to suppress the gun.
The defendant concedes that the verdict was not repugnant (see e.g. People vTucker, 55 NY2d 1, 6-7 [1981]), but argues that it was irrational and, therefore,against the weight of the evidence. Although the verdict appears to have been motivatedby leniency, this fact is not grounds for reversal provided the verdict is not repugnant as amatter of law (see People vDonovan, 58 AD3d 640, 641 [2009]; [*2]People v Vitta, 220 AD2d 468 [1995]; People vFarrell, 190 AD2d 746, 747-748 [1993]; People v Montgomery, 116 AD2d669, 670 [1986]). Further, in fulfilling our responsibility to conduct an independentreview of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342 [2007]), we nevertheless accord great deference to the opportunity of the trier offact to view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; Peoplev Bleakley, 69 NY2d 490, 495 [1987]; People v Birot, 99 AD3d 933, 934 [2012]). Uponreviewing the record here, we are satisfied that the verdict of guilt was not against theweight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
Contrary to his contention, the defendant did not establish his prima facie entitlementto a missing witness charge (seePeople v Lopez, 19 AD3d 510, 512 [2005]). As the record shows, when theuncalled witness, a police officer, arrived on the scene, he was involved in theapprehension of another individual and was not present at the time the defendant wasapprehended. Therefore, the uncalled witness would not have been able to describe theencounter (see People v Dianda, 70 NY2d 894 [1987]; People v Lopez,19 AD3d at 512; cf. People v Kitching, 78 NY2d 532, 538 [1991]).
The defendant's remaining contentions are without merit. Dillon, J.P., Angiolillo,Dickerson and Hinds-Radix, JJ., concur.