| People v Roosevelt |
| 2015 NY Slip Op 01127 [125 AD3d 1452] |
| February 6, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vTito Roosevelt, Also Known as Samuel Gamblin, Appellant. (Appeal No.1.) |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (David J. Rudroff of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.),rendered March 18, 2013. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a weapon in the second degree, forgery in the second degree andfalse personation.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himfollowing a jury trial of, inter alia, criminal possession of a weapon in the second degree(Penal Law § 265.03 [3]) and, in appeal No. 2, he appeals from a judgmentconvicting him upon his plea of guilty of promoting prison contraband in the first degree(§ 205.25 [2]). In appeal No. 1, defendant contends that reversal is requiredbecause County Court erred in refusing to suppress statements he made to the policefollowing his arrest on the weapons offense. We reject defendant's contention thatreversal is required. According to the evidence at the suppression hearing, a policeofficer on patrol with his partner in the City of Buffalo observed defendant standing inthe doorway of a corner store looking outside and from side to side. The officer testifiedthat, when defendant made eye contact with him, defendant's eyes "got big" and he rantoward the rear of the store. The officer and his partner exited their vehicle and, uponentering the store, they encountered defendant, who was on his way out. Defendant wassweating and appeared to be nervous. The officer directed a third officer to detaindefendant outside while he and his partner searched the store for guns or drugs. Withinminutes, the officer found a loaded .38 caliber handgun in a cardboard box that containedgallon jugs of water. The box was on the shelf of the aisle where the officer had seendefendant walking as he headed for the exit. The officer and his partner then reviewedthe store's surveillance video, which showed defendant placing an object into the box inquestion minutes earlier. After viewing the video, the officer sent a radio message to thethird officer directing him to arrest defendant.
At the police station, defendant waived his Miranda rights and admitted thathe possessed the gun, explaining that he intended to use the gun to shoot a man in thestore who had shot his brother. In seeking to suppress his statements to the police but notthe weapon itself, defendant contended that he was unlawfully detained outside the storebefore the police discovered the weapon and that his statements therefore constitutedfruit of the poisonous tree.
We agree with defendant that the police unlawfully detained him outside the storewhile they searched inside for contraband, inasmuch as, at that time, there did not existreasonable suspicion to believe that he was committing, had committed or was about tocommit a crime (see generallyPeople v Moore, 6 NY3d 496, 498-499 [2006]; People v De Bour, 40NY2d 210, 223 [1976]). Defendant's behavior in the store as observed by the officerjustified, at most, a level two common-law inquiry. The People assert that, once thepolice independently found the loaded [*2]weapon in thestore approximately five minutes after defendant was initially detained, the degree ofsuspicion ripened to probable cause, and defendant was lawfully arrested. Thus, thePeople conclude, there is no basis to suppress defendant's subsequent statements as theproduct of an unlawful arrest (see People v Stevenson, 273 AD2d 826, 827[2000]). Because the suppression court did not rely on that ground in denying defendant'smotion, however, we cannot affirm on that basis (see People v Concepcion, 17 NY3d 192, 197-198[2011]).
Nevertheless, we conclude that any error in failing to suppress defendant's statementsis harmless inasmuch as the proof of guilt is overwhelming and there is no reasonablepossibility that the jury would have acquitted defendant if his statements had beensuppressed (see People vBrown, 120 AD3d 954 [2014]; see generally People v Crimmins, 36NY2d 230, 237 [1975]). The store surveillance video clearly showed defendant place anobject into the box in which the loaded firearm was found minutes later by the police.Although one cannot discern from the video that the object that defendant placed into thebox was a gun—defendant suggests on appeal that it could have been a cellphone—the box contained no objects other than the gun and the jugs of water.Moreover, the evidence at trial showed that defendant could not be excluded as acontributor to DNA recovered from the gun. According to the People's DNA expert, theprobability of randomly selecting an unrelated person as a possible contributor to theDNA profile was at least one in 995 for individuals in the United States.
We reject defendant's further contention in appeal No. 1 that the evidence is legallyinsufficient to support the conviction of the weapons offense. Viewing the evidence inthe light most favorable to the People (see People v Contes, 60 NY2d 620, 621[1983]), we conclude that there is a valid line of reasoning and permissible inferencesthat could lead a rational person to conclude that defendant possessed a loaded andoperable firearm (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Further, viewing the evidence in light of the elements of that crime as charged to the jury(see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally Bleakley, 69 NY2d at 495).
We have reviewed defendant's remaining contentions in appeal No. 1 and concludethat none require reversal or modification of the judgment. Finally, in view of ourdetermination affirming the judgment in appeal No. 1, there is no basis to grant hisrequest to reverse the judgment in appeal No. 2 and vacate his plea of guilty (cf.People v Fuggazzatto, 62 NY2d 862, 863 [1984]). Present—Centra, J.P.,Fahey, Lindley, Sconiers and Whalen, JJ.