| People v Bradley |
| 2013 NY Slip Op 05149 [108 AD3d 1101] |
| July 5, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vTyrone C. Bradley, Jr., Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.),rendered June 3, 2009. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [3]),defendant contends that County Court erred in denying his motion to suppress thefirearm that he was charged with possessing. Specifically, defendant contends that thepolice unlawfully stopped him while he was walking his miniaturized motorbike on thesidewalk, and that the firearm must be suppressed as a result of that unlawful stop. Wereject that contention. At the suppression hearing, a police officer testified that hestopped defendant because defendant was riding the motorbike in the road without ahelmet. When the officer asked defendant whether he had any identification, defendantanswered, "no," and took a step back, whereupon the officer reached toward defendant inan attempt to frisk him. Before the officer could detain him, however, defendant ranaway and, during his flight, punched another officer who had joined in the pursuit.Defendant was soon apprehended and found to be in possession of a loaded firearm, 20bags of marihuana, and more than $2,000 in cash.
During a break in the suppression hearing, defendant learned that the police hadinadvertently sold his motorbike at auction. The sale took place approximately fourmonths after defendant's arrest and two months before the suppression hearing. When thesuppression hearing resumed, defendant's uncle testified that the motorbike wasinoperable on the day of defendant's arrest, thereby calling into question the officer'shearing testimony that defendant had been riding the motorbike without a helmet. Inrebuttal, the People called another police officer as a witness, who testified that she sawdefendant riding the same motorbike in the road 5 to 10 minutes before he was stoppedand that, after defendant was taken into custody, she started the motorbike and "revvedthe engine." The court then permitted defendant to take the stand as the final witness.Defendant testified that the motorbike would not start on the day in question and that hewas pushing it on the sidewalk to his house from his uncle's house, where it had been[*2]stored since it had broken down. The court denieddefendant's suppression motion, stating that its decision was based on the testimony thatit found to be credible.
In support of his contention that the stop was unlawful, defendant contends that thecourt should have drawn a permissive adverse inference against the People due to thefailure of the police to preserve the motorbike. At the suppression hearing, however,defendant did not request a permissive adverse inference; instead, defendant asked thecourt to preclude any testimony at the hearing about the motorbike and to strike any suchtestimony that had already been given. In the alternative, defendant asked the court toassume that the condition of the motorbike was as defendant alleged, i.e., inoperable.Thus, defendant's contention that the court should have drawn a permissive adverseinference is unpreserved for our review (see CPL 470.05 [2]).
In any event, even assuming, arguendo, that defendant requested the court to draw anadverse inference, and that the court erred in failing to do so (see People v Handy, 20 NY3d663, 669-670 [2013]), we conclude that such error is harmless (see People v Blake, 105 AD3d431, 431 [2013]). We note that, in his motion papers, defendant's attorney stated thata suppression hearing was warranted because defendant, when detained by the police,was "sitting on the front lawn of a home on Reynolds Street" with several of his friends.Although defense counsel knew at the time that the police had claimed to have stoppeddefendant for riding the motorbike without a helmet, he did not assert that the motorbikewas inoperable or that defendant was walking it on the sidewalk when approached by thepolice. It was only after defendant learned that the motorbike had been sold at auctionthat defendant asserted that the motorbike was inoperable. Under those circumstances,and considering that the court evidently credited the testimony of the police officers(see generally People v Prochilo, 41 NY2d 759, 761 [1977]), we conclude thatthere is no reasonable possibility that the court would have found the stop to have beenunlawful even if it had drawn a permissive adverse inference against the People (seegenerally People v Crimmins, 36 NY2d 230, 237 [1975]).
We have reviewed defendant's remaining contentions and conclude that they lackmerit. Present—Scudder, P.J., Peradotto, Lindley and Sconiers, JJ.