| People v Mitchell |
| 2015 NY Slip Op 05224 [129 AD3d 1319] |
| June 18, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vRashan L. Mitchell, Appellant. |
Neal D. Futerfas, White Plains, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Rose, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered August 3, 2012, upon a verdict convicting defendant of the crimes ofcriminal possession of a weapon in the second degree and criminal possession of aweapon in the third degree.
Defendant was charged with criminal possession of a weapon in both the second andthird degrees after a loaded revolver was found lying beneath him on the ground when hewas apprehended by police officers who had been surveilling an illegal drug transaction.He was convicted as charged and County Court sentenced him to an aggregate prisonterm of 15 years plus five years of postrelease supervision. He now appeals.
Initially, we cannot agree with defendant's contention that the statutes with which hewas charged are unconstitutional (see Penal Law §§ 265.02[1]; 265.03 [3]). As we have previously held, "Penal Law article 265 does not effect acomplete ban on handguns and is, therefore, not a 'severe restriction' improperlyinfringing upon defendant's Second Amendment rights " (People v Perkins, 62 AD3d1160, 1161 [2009], lv denied 13 NY3d 748 [2009], quoting District ofColumbia v Heller, 554 US 570, 629 [2008]; see People v Hughes, 83 AD3d 960, 961-962 [2011],affd 22 NY3d 44 [2013]).
Nor can we agree that defendant's motion to suppress the weapon as the result of anunlawful seizure should have been granted. Police detectives testified that, while theywere performing radio and video surveillance of a confidential informant (hereinafter theCI) and an [*2]undercover officer attempting to purchasenarcotics in an area known for its drug activity, they observed defendant acting as alookout during the transaction. Defendant was dressed in a similar manner to his twomale companions and, according to a detective, drug dealers often dress in a similarmanner in order to make an accurate description more difficult. After the CI and theundercover officer confirmed that narcotics had been purchased from one of defendant'scompanions and provided a description, detectives approached defendant's group as theywalked away and ordered them to stop and put up their hands. Although defendantinitially complied, he then turned, reached his hand toward the back of his waist andstarted running. The police chased defendant until he fell while attempting to go over afence. Seeing something black in defendant's hands, a detective jumped on top of him,pinning defendant to the ground with his hands beneath his body. After defendant wassubdued, a loaded black revolver was found on the ground beneath him.
A reasonable suspicion that a particular individual was involved in a crime isrequired in order to justify a forcible detention (see People v De Bour, 40 NY2d210, 223 [1976]). Contrary to defendant's argument, he was not approached and orderedto stop merely because of his presence in a high-crime area. Rather, his manner of dressand conduct gave detectives reasonable suspicion to believe that he had been part of thedrug transaction engaged in by the CI, thus justifying their initial approach andsubsequent pursuit (see People v Woods, 98 NY2d 627, 628 [2002]; People vSierra, 83 NY2d 928, 930 [1994]; People v Martinez, 80 NY2d 444, 448[1992]). According weight to County Court's ability to observe the witnesses and viewthe surveillance video (see People v Prochilo, 41 NY2d 759, 761 [1977]; People v Morris, 105 AD3d1075, 1077 [2013], lv denied 22 NY3d 1042 [2013]), we perceive no basisto disturb the court's determination to deny the suppression motion (see People v Ford, 110 AD3d1368, 1371 [2013], lv denied 24 NY3d 1043 [2014]; People v Davenport, 92 AD3d689, 690-691 [2012], lv dismissed 19 NY3d 959 [2012]).
Although defendant also contends that the prosecutor's remarks during summationimproperly shifted the burden of proof, defendant did not object to the summation and,thus, this issue is not preserved for our review (see People v VanVorst, 118 AD3d 1035, 1037 [2014]; People v Reichel, 110 AD3d1356, 1364 [2013], lv denied 22 NY3d 1090 [2014]). Were we to considerit, we would agree that the prosecutor impermissibly commented that defendant offeredno evidence to explain why his DNA was on the handgun and should not have suggestedthat to believe defendant would require believing that the police officers risked their jobsto frame him. Nevertheless, we would not find a "flagrant and pervasive pattern ofprosecutorial misconduct so as to deprive [defendant] of a fair trial" (People vVanVorst, 118 AD3d at 1037 [internal quotation marks and citation omitted]; accord People v Rivera, 124AD3d 1070, 1075 [2015]; see People v Hughes, 111 AD3d 1170, 1173 [2013], lvdenied 23 NY3d 1038 [2014]). Rather, the prosecutor's summation was primarilyabout the "proved facts and circumstances and the inferences to be drawn therefrom inorder to support or undermine the credibility of any witness[es]" (People vBailey, 58 NY2d 272, 277 [1983]), and, considered in context, the impropercomments would not require reversal (see People v Goldston, 126 AD3d 1175, 1180-1181[2015]; People v Head, 90AD3d 1157, 1158 [2011]; People v McCombs, 18 AD3d 888, 890 [2005]).
We also find unpersuasive defendant's contention that County Court deprived him ofhis right to counsel by denying his pretrial request for substitution of counsel.Defendant's generalized complaints that counsel initially assigned to him by the PublicDefender's office did not spend enough time meeting with him and could not representhim "in the right fashion" did not trigger the need for an inquiry into whether good causeexisted for substitution (seePeople v Smith, 18 NY3d 588, 593 [2012]; People v Beriguette, 84NY2d 978, 980 [1994]; People v [*3]Donovan,248 AD2d 895, 896 [1998], lv denied 92 NY2d 851 [1998]; People vFrayer, 215 AD2d 862, 863-864 [1995], lv denied 86 NY2d 794 [1995]).Furthermore, we note that defendant went to trial with a different attorney from thePublic Defender's office, about whom he has not complained.
Nor is there any basis to disturb the sentence. County Court properly considereddefendant's role in the drug transaction that preceded his arrest (see People vMason, 299 AD2d 724, 726 [2002], lv denied 100 NY2d 564 [2003]), andthe record does not establish that it acted out of personal animosity or penalizeddefendant for exercising his right to trial (see People v Brown, 123 AD3d 1298, 1299 [2014]; People v Griffin, 122 AD3d1068, 1071 [2014]; Peoplev Mercado, 113 AD3d 930, 934 [2014], lv denied 23 NY3d 1040[2014]). Rather, the court specifically rejected the People's suggestion that defendantshould be punished for going to trial and considered the appropriate factors in reachingits determination (see People vCrockett, 30 AD3d 768, 771 [2006], lv denied 7 NY3d 866 [2006]; People v Duplessis, 16 AD3d846, 848 [2005], lv denied 4 NY3d 853 [2005]). We have considereddefendant's remaining contentions, including his claim that the cumulative effect oferrors deprived him of a fair trial, and find them to be unavailing.
Lahtinen, J.P., Garry and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.