| People v Wofford |
| 2014 NY Slip Op 02180 [115 AD3d 1332] |
| March 28, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Eugene Wofford, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia,A.J.), rendered October 21, 2010. The judgment convicted defendant, upon a juryverdict, of criminal possession of a weapon in the second degree, criminal possession ofmarihuana in the third degree and reckless endangerment in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of criminal possession of a weapon in the second degree (Penal Law §265.03 [3]), criminal possession of marihuana in the third degree (§ 221.20), andreckless endangerment in the second degree (§ 120.20). Contrary to defendant'scontention, Supreme Court did not err in refusing to suppress the gun and drugsdiscarded by defendant and later found by the police. A police officer testified at thesuppression hearing that he received an anonymous tip regarding drug activity takingplace at a certain location. Upon proceeding to the location, the officer found defendantsitting in a parked vehicle, which was similar to the description of the vehicle given bythe anonymous caller. As the officer spoke with defendant, he noticed what appeared tobe a pile of cigar tobacco on the ground outside the vehicle, and the officer knew, basedon his training and experience, that emptying a cigar was a common method of preparinga marihuana cigar, or a "blunt." When the officer asked defendant to step out of thevehicle, defendant instead started the vehicle and sped off, almost striking another officerwho was approaching the vehicle on foot. During the ensuing chase, defendant discardeda bag out of the passenger-side window. The bag was later recovered by the police andwas found to contain a loaded weapon and marihuana.
The officer's initial approach of defendant and request for identification was apermissible level one encounter under People v De Bour (40 NY2d 210 [1976];see generally People v Hollman, 79 NY2d 181, 191 [1992]). Although theofficer's request that defendant exit the parked vehicle elevated the situation to a levelthree encounter under De Bour (see People v Atwood, 105 AD2d 1055,1055 [1984]; see also People v Harrison, 57 NY2d 470, 475-476 [1982]), weconclude that the officer had reasonable suspicion that defendant was engaged in illegalactivity based on the [*2]anonymous tip and the officer'sobservation of drug activity, i.e., the pile of cigar tobacco on the ground (see People vMays, 190 Misc 2d 310, 316 [2001], affd 10 AD3d 556 [2004], lvdenied 4 NY3d 765 [2005]; see also Matter of Camille H., 215 AD2d 143,143-144 [1995]). In any event, even assuming, arguendo, that defendant was unlawfullydetained, we conclude that his criminal conduct in speeding off and almost striking thesecond officer—conduct for which defendant was convicted of recklessendangerment in the second degree—"severed any causal connection between theunlawful detention and the subsequently-acquired evidence" (People v May, 100 AD3d1411, 1411 [2012], lv denied 20 NY3d 1063 [2013]).
Contrary to defendant's contention, the evidence is legally sufficient to support theconviction of criminal possession of a weapon in the second degree and criminalpossession of marihuana in the third degree inasmuch as the evidence established that thebag later found by the police had been possessed by and then discarded by defendantduring the chase (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Inaddition, viewing the evidence in light of the elements of those crimes as charged to thejury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not againstthe weight of the evidence with respect to them (see generally Bleakley, 69NY2d at 495).
We reject defendant's contention that the court erred in denying his request for amissing witness charge. The testimony of a third officer involved in the police chasewould have been cumulative (see People v Santiago, 101 AD3d 1715, 1717 [2012],lv denied 21 NY3d 946 [2013]; People v Duda, 45 AD3d 1464, 1466 [2007], lvdenied 10 NY3d 764 [2008]; see generally People v Gonzalez, 68 NY2d424, 427 [1986]). In any event, any error in failing to give that charge is harmlessinasmuch as the evidence of defendant's guilt is overwhelming, and there is nosignificant probability that defendant would have been acquitted but for the alleged error(see People v McCune, 210 AD2d 978, 979 [1994], lv denied 85 NY2d864 [1995]; see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]).Finally, the sentence is not unduly harsh or severe. Present—Centra, J.P.,Peradotto, Carni, Valentino and Whalen, JJ.