| People v Mitchell |
| 2014 NY Slip Op 04608 [118 AD3d 1417] |
| June 20, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vIkeem Mitchell, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.),rendered October 28, 2010. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree and criminal possession of a weapon in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of murder in the second degree (Penal Law § 125.25 [1]) andcriminal possession of a weapon in the second degree (§ 265.03 [3]).Defendant contends that he was illegally stopped by the police and, thus, that CountyCourt erred in refusing to suppress the handgun seized by the police from his person andhis subsequent statements to the police. We reject that contention. "[T]he police mayforcibly stop or pursue an individual if they have information which, although notyielding the probable cause necessary to justify an arrest, provides them with areasonable suspicion that a crime has been, is being, or is about to be committed"(People v Martinez, 80 NY2d 444, 447 [1992]; see People v Austin, 38 AD3d1246, 1248 [2007], lv denied 8 NY3d 981 [2007]). "Reasonable suspicion isthe quantum of knowledge sufficient to induce an ordinarily prudent and cautious[person] under the circumstances to believe criminal activity is at hand" (People vCantor, 36 NY2d 106, 112-113 [1975]; see People v Woods, 98 NY2d 627,628 [2002]; Martinez, 80 NY2d at 448). Here, the evidence before thesuppression court established that the police sergeant was entitled to stop defendantforcibly because he had a reasonable suspicion that defendant was involved in theshooting of a man that had been recently reported. Defendant matched the descriptiongiven by a witness at the crime scene, who described the suspect as a short black malewearing an oversized black hoodie. The witness also indicated that the suspect fled thecrime scene on foot in an easterly direction. Within 10 minutes of the report of theshooting, the police sergeant observed defendant walking in that direction from the areaof the shooting, and defendant and his clothing matched the description given by thewitness. The police sergeant observed that the "voluminous" hoodie worn by defendanthung to his knees and made him appear short. The police sergeant also noted thatdefendant repeatedly looked behind him to see if he was being followed. We thereforeconclude that the police sergeant had the requisite reasonable suspicion that criminalactivity was at hand to justify the forcible stop of defendant. In answer to questions fromthe police sergeant, defendant admitted that he was coming from the area of the shootingand that he had a gun in his pocket, which the police sergeant subsequently lawfullyseized (see People v Jackson, 72 AD2d 149, 152 [1980]). Recovery of the gunfrom defendant's person, in addition to the other information known by the policesergeant, provided probable cause for defendant's arrest. Defendant was thereafter takento police headquarters, where he waived his Miranda rights and made inculpatorystatements.
Viewing the evidence in light of the elements of the crime of murder in the seconddegree as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), wereject defendant's contention that the verdict is against the weight of the evidence withrespect to the element of intent (see generally People v Bleakley, 69 NY2d 490,495 [1987]). We conclude that a different finding by the jury, i.e., a finding thatdefendant acted without intent to kill the victim, would have been unreasonable (seegenerally id.; People vGarrett, 88 AD3d 1253, 1253-1254 [2011], lv denied 18 NY3d 883[2012]). In his statements to the police, defendant admitted that he shot the victimintentionally in retaliation for the shooting of his friend the previous day. Furthermore,the evidence at trial established that the victim was shot three times at a close range,indicating an intent to kill (seegenerally People v Payne, 3 NY3d 266, 272 [2004]).
We reject defendant's contention that the imposition of consecutive sentences for thetwo crimes is illegal inasmuch as the evidence adduced at trial established that hisunlawful possession of the gun was a criminal act separate and distinct from his shootingof the victim (see People vBrown, 21 NY3d 739, 751 [2013]). Finally, defendant's sentence is not undulyharsh or severe, and we see no basis for reducing it. Present—Scudder, P.J.,Centra, Fahey, Sconiers and Valentino, JJ.