| People v Baksh |
| 2015 NY Slip Op 01655 [125 AD3d 988] |
| February 25, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Dale Baksh, Appellant. |
Randall D. Unger, Bayside, N.Y., for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, SholomJ. Twersky, and James F. Ianelli of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Gary, J.), rendered January 3, 2013, convicting him of criminal possession of a weaponin the second degree and unlawful possession of marijuana, upon a jury verdict, andimposing sentence. The appeal brings up for review the denial, after a hearing (Mangano,Jr., J.), of those branches of the defendant's omnibus motion which were to suppressphysical evidence and his statement to law enforcement officials.
Ordered that the judgment is affirmed.
The defendant's suppression motion was properly denied. The testimony adduced atthe suppression hearing established that at approximately 11:25 p.m., on October 23,2011, New York City Police Sergeant Jose Baez and Police Officers Gerald Cucchiaraand Jay Richiez received a radio transmission reporting that gunshots were fired in thevicinity of Church Avenue and Albemarle Terrace in Brooklyn. Within two to fourminutes of the dispatch, these officers approached the defendant and his companion, whowere walking approximately one half of a block away from where the shots werereportedly heard. There were no other pedestrians in the area. Sergeant Baez called out:"Police. Stop." At the time, the three officers did not have their guns drawn, and theirshields were displayed. As the defendant walked toward the officers, he grabbed the rightside of his waistband. At that point, Officer Cucchiara observed an L-shaped bulge in thedefendant's waistband, and yelled out: "gun." The defendant ran, and, during the courseof the pursuit, the defendant discarded a gun. The police thereafter apprehended thedefendant and, during a search incident to his arrest, discovered a bag of marijuana.
Inasmuch as the defendant and a companion were observed in proximity to the sceneof the reported incident, and no one else was in the vicinity, we conclude that the policeinitially had a common-law right of inquiry based upon a founded suspicion that criminalactivity was afoot (see People v Stewart, 41 NY2d 65 [1976]; People v DeBour, 40 NY2d 210, 223 [1976]; People v Davis, 106 AD3d 144 [2013]; People v McKinley, 101 AD3d1747 [2012]; People vWilliams, 73 AD3d 1097 [2010]; People v Amuso, 44 AD3d 781 [2007]; People vSanders, 235 AD2d 507 [1997]; People v Forelli, 58 AD2d 76 [1977]). Wereject the defendant's contention that the initial encounter constituted a forcible stop ofthe defendant in the absence of the requisite reasonable suspicion that he committed, wascommitting, or was about to [*2]commit a crime. Oncethe police officer noticed what appeared to be a gun, and the defendant fled, the officershad probable cause to arrest the defendant (see People v Hill, 72 AD3d 702 [2010]).
Contrary to the defendant's contention, he was not deprived of the opportunity toconduct or participate in an adequate voir dire. While a defendant enjoys the right toquestion a panel of potential jurors freely about relevant matters, the trial court'sdiscretion extends to the imposition of reasonable restrictions on the amount of timeallotted for such questioning (see People v Jean, 75 NY2d 744 [1989]; People v Thompson, 45 AD3d876 [2007]). Here, the trial court providently exercised its discretion in limiting thetime in which defense counsel questioned potential witnesses during the third round ofvoir dire. Since the court itself engaged in preliminary questioning before permittingcounsel to commence questioning of the prospective jurors, many of the areas of inquirywhich counsel would otherwise normally have explored were covered in advance by thecourt. In addition, counsel had the opportunity to engage in a colloquy with the potentialjurors regarding potential bias and prejudice, as well as the jury's understanding of theconcepts of "innocent until proven guilty" and the defendant's right not to testify.Moreover, at the conclusion of the third round of questioning, counsel did not indicatethat she needed additional time to engage in follow-up questioning of any prospectivejuror, or that she needed to explore other areas of inquiry.
Finally, we also reject the defendant's claim that the prosecutor's remarks insummation warrant reversal. There is no merit to the defendant's contention that theprosecutor's remarks impermissibly shifted the burden of proof to him. The remainingchallenges to the prosecutor's summation remarks are unpreserved for appellate review(see CPL 470.05 [2]) and, in any event, the comments made by the prosecutorwere proper responses to arguments that defense counsel made during summation (see People v Sherron, 2 AD3d885 [2003]). Skelos, J.P., Austin, Roman and LaSalle, JJ., concur.