| People v Mitchell |
| 2015 NY Slip Op 01292 [125 AD3d 790] |
| February 11, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Rommel Mitchell, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Kathleen Whooley of counsel), for appellant,and appellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, MorganJ. Dennehy, and Marie John-Drigo of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Garnett, J.), rendered July 1, 2011, convicting him of criminal possession of a weapon inthe second degree, criminal possession of a weapon in the fourth degree, and criminalpossession of a controlled substance in the third degree, upon a jury verdict, andsentencing him a determinate term of imprisonment of nine years plus a period of fiveyears of postrelease supervision upon his conviction of criminal possession of a weaponin the second degree, a determinate term of imprisonment of seven years plus a period oftwo years of postrelease supervision upon his conviction of criminal possession of acontrolled substance in the third degree, and a definite term of one year of imprisonmentupon his conviction of criminal possession of a weapon in the fourth degree, to runconcurrently with each other. The appeal brings up for review the denial, after a hearing,of that branch of the defendant's omnibus motion which was to suppress physicalevidence.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by reducing the sentence imposed upon the defendant's conviction of criminalpossession of a weapon in the second degree from a determinate term of imprisonment ofnine years plus a period of five years of postrelease supervision to a determinate term ofimprisonment of 5
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hearthe testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing therecord here, we are satisfied that the verdict of guilt was not against the weight of theevidence (see People vRomero, 7 NY3d 633 [2006]).
The Supreme Court properly denied that branch of the defendant's omnibus motionwhich was to suppress marijuana observed in plain view, and other evidence seized fromhis vehicle [*2]after a lawful traffic stop (cf. People vBeriguette, 84 NY2d 978, 980 [1994]; People v Davis, 103 AD3d 810, 811 [2013]; People v Anderson, 91 AD3d789 [2012]; People vFoster, 4 AD3d 434 [2004]). "In light of the heightened dangers faced byinvestigating police officers during traffic stops, a police officer may, as a precautionarymeasure and without particularized suspicion, direct the occupants of a lawfully stoppedvehicle to step out of the car" (People v Garcia, 20 NY3d 317, 321 [2012]; seePennsylvania v Mimms, 434 US 106, 111 n 6 [1977]; People v Robinson, 74NY2d 773, 775 [1989]). Contrary to the defendant's contention, the testimony given bypolice officers at the suppression hearing in this matter regarding the reason for thetraffic stop, and their observation of the marijuana when the defendant was exiting hisvehicle, was not incredible as a matter of law (cf. People v Glenn, 53 AD3d 622, 624 [2008]; People v Foster, 4 AD3d434 [2004]).
The defendant's contention that he was deprived of a fair trial by certain remarksmade by the prosecutor during summation is unpreserved for appellate review, since hefailed to object to any of the remarks about which he now complains (see CPL470.05 [2]; People vRomero, 7 NY3d 911, 912 [2006]; People v Douglas, 64 AD3d 726, 727 [2009]). In anyevent, the defendant was not deprived of a fair trial; most of the challenged remarks werewithin the broad bounds of rhetorical comment permissible in closing arguments, faircomment on the evidence, or responsive to arguments and theories presented in thedefense summation (see People v Halm, 81 NY2d 819, 821 [1993]; People vGalloway, 54 NY2d 396, 399 [1981]; People v Ashwal, 39 NY2d 105,109-110 [1976]; People v Turner, 214 AD2d 594 [1995]). To the extent that theremaining individual challenged remarks were improper, they were harmless (seePeople v Crimmins, 36 NY2d 230, 241-242 [1975]).
The sentences imposed upon the defendant's convictions of criminal possession of aweapon in the second degree and criminal possession of a controlled substance in thethird degree were excessive to the extent indicated herein. Mastro, J.P., Roman, Sgroiand Barros, JJ., concur.