| People v Williams |
| 2013 NY Slip Op 07423 [111 AD3d 448] |
| November 12, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Harold Williams, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Kayonia L. Whetstone of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Edward Davidowitz, J.H.O., atsuppression hearing; Harold Adler, J., at suppression ruling; Robert A. Neary, J., at jurytrial and sentencing), rendered July 18, 2011, convicting defendant of two counts ofcriminal possession of a weapon in the second degree, and sentencing him to concurrentterms of seven years, unanimously affirmed.
The court properly denied defendant's suppression motion. The record supports thecourt's finding that an officer recovered a pistol from defendant by way of a lawful stopand frisk based on reasonable suspicion. A fair reading of the record fails to supportdefendant's assertion that the officer's conduct exceeded the proper bounds of a frisk. Onthe contrary, the evidence demonstrates that the officer removed a pistol from defendant'swaistband only after the officer made contact with the grip of the pistol, and thusconfirmed that it was a weapon. Moreover, based on the information known to theofficer before he made physical contact with defendant, including the officer'sobservation of a pistol-shaped bulge, he not only had reasonable suspicion that defendantwas carrying a weapon, but knew exactly where the weapon was located. Accordingly, itwas reasonable for the officer to make an immediate seizure as a safety measure (seePeople v Taggart, 20 NY2d 335, 342-343 [1967], appeal dismissed 392 US667 [1968]).
The trial court properly exercised its discretion in admitting testimony about a policebulletin received by the arresting officers, which contained a basic description of a recentpattern of armed robberies involving three unidentified men. This evidence providednecessary background material to complete the narrative of events leading up todefendant's arrest and explain why the police officers' attention was drawn to defendantand his companions (see People v Morris, 21 NY3d 588 [2013]; People v Barnes, 57 AD3d289 [1st Dept 2008], lv denied 12 NY3d 781 [2009]). One of the primaryissues in the case was police credibility, and this evidence was necessary to preventundue speculation by the jury (id.). Furthermore, any prejudicial effect wasminimized by the court's limiting instructions, which the jury is presumed to havefollowed. Defendant's constitutional arguments, his claim of prosecutorial misconduct insummation, and his challenge to the timing of the court's limiting instruction areunpreserved (see People vRomero, 7 NY3d 911, 912 [2006]), and we decline to [*2]review them in the interest of justice. As an alternativeholding, we reject them on the merits.
The court properly denied defendant's request for a jury charge on temporary andlawful possession. There was no reasonable view of the evidence, viewed in the lightmost favorable to defendant, that his possession of a weapon resulted from theperformance of a lawful act (see People v Williams, 50 NY2d 1043, 1045[1980]). Defendant's request for this charge was based on his written statement admittingthat he placed his companion's loaded pistol into his own waistband "for fun." "Fun" isnot a legal excuse for possessing a weapon.
We perceive no basis for reducing the sentence. Concur—Tom, J.P., Andrias,Friedman, Freedman and Clark, JJ.