| People v Simmons |
| 2015 NY Slip Op 08523 [133 AD3d 1275] |
| November 20, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vTyrell D. Simmons, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Bridget L. Field of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti,J.), rendered April 26, 2011. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a weapon in the second degree (two counts) and criminalpossession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of two counts of criminal possession of a weapon in the second degree (PenalLaw § 265.03 [1] [b]; [3]) and one count of criminal possession of aweapon in the third degree (§ 265.02 [1]). Contrary to defendant'scontention, Supreme Court properly determined that the police had probable cause toarrest him. The record establishes that defendant was observed crossing a street by twopolice officers who were part of a six-member tactical unit patrolling a high-crime area inthree vehicles. One officer testified that he observed that the right front pocket ofdefendant's sweatshirt hung "dramatically lower" than the left front pocket and that therewas a "large object" protruding from the right pocket. The officer further testified that,based upon his training and experience, he believed that defendant had a weapon. Beforethe officer exited his vehicle, he made eye contact with defendant, who cupped his handaround his right pocket, "bladed his body" away from the officer at a 45-degree angle,and walked diagonally away from the vehicle into a yard. When the officer exited hisvehicle, he addressed defendant by stating that he wanted to talk to him "for a minute,"and defendant began to run. After taking two steps, defendant pulled an object from theright pocket of his sweatshirt, which the officer observed was a dark object, and threw it.The officer testified that he "heard a distinct metal sound clanging as [the object] hit theground." At that point, the officer began to run and, when he observed that the object onthe ground was indeed a gun, he continued to pursue defendant. The weapon wassecured by another officer of the tactical unit, and defendant was apprehended by a thirdofficer of the unit.
Although each of defendant's actions, " 'standing alone, could be susceptibleto an innocent interpretation, a view of the entire circumstances' gave the [police] afounded suspicion that criminality was afoot, which invoked the common-law right toinquire" (People v Gerard,94 AD3d 592, 593 [2012], quoting People v Evans, 65 NY2d 629, 630[1985]). The officer's observation of the weapon on the ground, along "with the attendantcircumstances, gave rise to the requisite reasonable suspicion justifying police pursuit"(People v Brown, 67 AD3d1439, 1440 [2009], lv denied 14 NY3d 798 [2010]). When the policerecovered the weapon that defendant had abandoned, they had probable cause to arresthim (see People v Martinez, 80 NY2d 444, 448-449 [1992]; People v Salamone, 61 AD3d1400, 1401 [2009], lv denied 12 NY3d 929 [2009]; People vHolland, 221 AD2d 947, 948 [1995], lv denied 87 NY2d 922 [1996]).
By failing to renew his motion to dismiss the indictment at the close of proof,defendant [*2]failed to preserve for our review hiscontention that the evidence is not legally sufficient to support the conviction (seePeople v Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001];People v Mills, 93 AD3d1198, 1199 [2012], lv denied 19 NY3d 964 [2012]). In any event, thatcontention is without merit. Defendant was observed by police discarding what wasdetermined to be an operable weapon outside of his home or place of business (seePenal Law § 265.03 [3]), and section 265.15 (4) "provides that '[t]hepossession by any person of any . . . weapon . . . is presumptiveevidence of intent to use the same unlawfully against another' person" (People v Galindo, 23 NY3d719, 722 [2014]). We have reviewed the evidence in light of the elements of thecrimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), and weconclude, contrary to defendant's contention, "that an acquittal would have beenunreasonable based upon the weight of the credible evidence presented at trial, and thusthe verdict is not against the weight of the evidence" (People v Kreutter, 121 AD3d 1534, 1535-1536 [2014];see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant failed to preserve for our review his contention that the indictment ismultiplicitous (see CPL 470.05 [2]; People v Quinn, 103 AD3d 1258, 1258 [2013], lvdenied 21 NY3d 946 [2013]). In any event, that contention lacks merit inasmuch aseach count of criminal possession of a weapon in the second degree "requires proof of anadditional fact that the other does not" (People v Jefferson, 125 AD3d 1463, 1464 [2015], lvdenied 25 NY3d 990 [2015] [internal quotation marks omitted]; see generallyGalindo, 23 NY3d at 721-722). Defendant failed to object to the court's Sandovalruling and thus failed to preserve for our review his contention that the court abusedits discretion in permitting the People to use at trial defendant's two prior misdemeanorconvictions (see People vTolliver, 93 AD3d 1150, 1151 [2012], lv denied 19 NY3d 968 [2012]),and we decline to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). Defendant failed to object to any of the remarks by theprosecutor during summation, which he contends improperly vouched for the credibilityof the People's witnesses, and thus failed to preserve for our review his contention that hewas denied a fair trial by prosecutorial misconduct (see People v Cotto, 106 AD3d 1534, 1534 [2013]). In anyevent, defendant's contention is without merit inasmuch as the prosecutor's remarks werea fair response to defendant's summation (see id.).
We reject defendant's contention that defense counsel's failure to renew the motion todismiss the indictment at the close of proof, or to object to the Sandoval rulingand to the allegedly improper remarks of the prosecutor during summation, deprived himof meaningful representation. It is well established that "[a] defendant is not deniedeffective assistance of . . . counsel merely because counsel does not make amotion or argument that has little or no chance of success" (People v Stultz, 2 NY3d277, 287 [2004]). Finally, the sentence is not unduly harsh or severe.Present—Scudder, P.J., Peradotto, Carni, Valentino and Whalen, JJ.