| People v Patron |
| 2016 NY Slip Op 05391 [141 AD3d 545] |
| July 6, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Azeem Patron, Appellant. |
Lynn W. L. Fahey, New York, NY (Samuel Brown of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove and RheaA. Grob of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Garnett, J.), rendered May 30, 2013, convicting him of criminal possession of a weaponin the second degree, upon a jury verdict, and imposing sentence. The appeal brings upfor review the denial, after a hearing (Gary, J.), of that branch of the defendant's omnibusmotion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
The defendant's contention that the Supreme Court improvidently exercised itsdiscretion in permitting the People to resubmit the case to a second grand jury panel afterthe first grand jury could not muster 12 votes either to indict the defendant or dismiss thecharges against him is unpreserved for appellate review (see CPL 470.05 [2];People v Brown, 81 NY2d 798 [1993]). In any event, the contention is without merit,since the first grand jury's inability to either indict or dismiss was a legitimate reason forthe new submission, and "the underlying circumstances do not provide clear indicationthat the first grand jury's decisional authority was being subverted" (People v Credle, 17 NY3d556, 562 [2011]; see Peoplev Pryor, 5 AD3d 222 [2004]).
The Supreme Court properly denied that branch of the defendant's omnibus motionwhich was to suppress the gun recovered from his person during a traffic stop. Thepolice officer's testimony at the suppression hearing established that the police hadauthority to stop the livery cab in which the defendant was a passenger based on thedriver's failure to signal while changing lanes (see People v Davis, 103 AD3d 810, 811 [2013]; People v Grant, 83 AD3d862, 863 [2011]). Upon making the valid traffic stop, the officer had discretion toorder the defendant to exit the vehicle (see People v Robinson, 74 NY2d 773,774 [1989]). Further, given the defendant's behavior while still seated in the vehicle,which included the defendant making a "dipping motion" by leaning over to his right,and then, upon exiting the car, trying to avoid showing the officer the right side of hisbody, the officer had a sufficient and reasonable basis to conduct a pat down search ofthe defendant's waistband and to remove the gun found therein (see CPL 140.50[3]; People v Grant, 83 AD3d at 863).
[*2] Viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it waslegally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover,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 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony,and observe demeanor (see People v Mateo, 2 NY3d 383 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]). Contrary to the defendant's contention, the testimony of the People'switnesses was not incredible (see People v Barber, 133 AD3d 868 [2015]; People v Marcus, 112 AD3d652 [2013]).
The defendant's challenge to various remarks made by the prosecutor duringsummation is unpreserved for appellate review, as the defendant failed to object to any ofthe challenged summation remarks (see CPL 470.05 [2]; People v Romero, 7 NY3d911, 912 [2006]; People vYusuf, 119 AD3d 619 [2014]; People v Jeudy, 115 AD3d 982, 983 [2014]). In any event,the remarks were either fair comment on the evidence and the reasonable inferences to bedrawn therefrom, or responsive to defense counsel's summation (see People v Bridges, 114AD3d 960 [2014]; People vWingfield, 113 AD3d 798, 799 [2014]; People v Hawley, 112 AD3d 968, 969 [2013]).
The defendant's remaining contention is without merit. Chambers, J.P., Hall, Austinand Barros, JJ., concur.