| People v Durham |
| 2017 NY Slip Op 00212 [146 AD3d 1070] |
| January 12, 2017 |
| Appellate Division, Third Department |
[*1](January 12, 2017)
| The People of the State of New York,Respondent, v Joseph Durham, Appellant. |
Sandra McCarthy, Conflict Defender, Troy (Joseph Ahern of counsel), forappellant.
Joel E. Abelove, District Attorney, Troy (Vincent J. O'Neill of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Rensselaer County(Ceresia, J.), rendered July 5, 2012, upon a verdict convicting defendant of the crimes ofcriminal possession of a weapon in the second degree and reckless endangerment in thefirst degree.
On April 29, 2011, at approximately 5:30 p.m., two police officers and a K-9 dogpursued defendant on foot after he exited the front passenger side of a vehicle that wassubject to a lawful traffic stop. During the pursuit, a firearm was discharged three timesin the direction of one of the police officers. Defendant was ultimately apprehended andarrested by law enforcement and he was thereafter charged with attempted murder in thefirst degree, two counts of criminal possession of a weapon in the second degree andreckless endangerment in the first degree. Following a jury trial, defendant was convictedof criminal possession of a weapon in the second degree and reckless endangerment inthe first degree. County Court sentenced him, as a second felony offender, to a prisonterm of 15 years, followed by five years of postrelease supervision, on his conviction forcriminal possession of a weapon in the second degree and, as a second felony offender,to a consecutive prison term of 3
Defendant argues that County Court should have suppressed physical evidence, aswell as a statement that he made to police following his apprehension, on the basis thatthe police did not have the requisite reasonable suspicion of criminal activity to lawfullypursue him once he fled. "Police pursuit of an individual 'significantly impede[s]' theperson's freedom of movement and thus must be justified by reasonable suspicion that acrime has been, is being, or is about to [*2]be committed"(People v Holmes, 81 NY2d 1056, 1057-1058 [1993], quoting People vMartinez, 80 NY2d 444, 447 [1992]). "Flight alone, even if accompanied withequivocal circumstances that would justify a police request for information, does notestablish reasonable suspicion of criminality and is insufficient to justify pursuit,although it may give rise to reasonable suspicion if combined with other specificcircumstances indicating the suspect's possible engagement in criminal activity" (People v Reyes, 69 AD3d523, 525-526 [2010], appeal dismissed 15 NY3d 863 [2010]; see Peoplev Pines, 99 NY2d 525, 527 [2002]; People v Holmes, 81 NY2d at 1058; People v Smith, 140 AD3d1396, 1397 [2016], lv denied 28 NY3d 936 [2016]).
Here, while on patrol in a marked K-9 police vehicle, two police officers initiated alawful traffic stop after they observed a vehicle that did not have a license plate affixedto the front bumper but instead was displayed on the dashboard in an inconspicuousmanner (see Vehicle and Traffic Law § 402 [1] [a]; People v Hale, 130 AD3d1540, 1540 [2015], lv denied 26 NY3d 1088 [2015]; People v Newman, 96 AD3d34, 40 [2012], lv denied 19 NY3d 999 [2012]; People v Brooks, 23 AD3d847, 849 [2005], lv denied 6 NY3d 810 [2006]). At the time that theyinitiated the stop, the officers were also operating under the reasonable belief that thevehicle was being driven by an individual who was wanted on an outstanding arrestwarrant for robbery in the first degree and who was also "named" as being involved infour shootings that had taken place over the previous four days. Despite the activation ofthe police vehicle's emergency lights and sirens, the vehicle did not stop and the policefollowed the vehicle for a number of blocks, observing it proceed through two stop signs,travel in the wrong lane of traffic and repeatedly pull toward the curb as if it was about topull over but then pull back into traffic.[FN*]
Both officers testified that, during their ongoing attempt to stop the vehicle, theyobserved an individual seated in the front passenger seat "leaning forward as if he wasgoing for the glove compartment area or the floor" and moving about in a manner that,because they could not see his hands, led them to believe that the individual may havebeen retrieving or secreting something. The vehicle eventually slowed and pulled towardthe curb, at which point the individual exited the front passenger door, looked in theofficers' direction, making brief eye contact, "reached down towards his waistband as ifhe was holding something" and fled, ignoring the officers' directions to stop. The officerseach testified that they immediately recognized the individual to be defendant, who theyknew was a person of interest in the recent shootings and a suspect in at least one ofthose shootings. Further, one of the officers testified that, because firearms are ordinarilycarried on a person's waistband and given defendant's alleged involvement in the recentshootings, he feared that defendant was carrying a gun. As the situation unfolded, theofficers developed a reasonable suspicion that defendant was engaged in criminalactivity—that is, the unlawful possession of a weapon—and thus they werejustified in pursuing defendant and releasing the K-9 dog to assist in their efforts to stopand detain him (see People v Pines, 99 NY2d at 526-527; People v Curtis, 29 AD3d316, 317 [2006], lv denied 7 NY3d 866 [2006]; People v Rivera, 286AD2d 235, 235-236 [2001], lv denied 97 NY2d 760 [2002]). Although defendantraised issues as to the officers' credibility, we defer to County Court's determination tocredit their testimony (seePeople v Belle, 74 AD3d 1477, 1479 [2010], lv denied 15 NY3d 918[2010]; People v Harper, 73AD3d 1389, 1389 [2010], lv denied 15 NY3d 920 [2010]). Therefore,County Court properly denied defendant's suppression motion. Furthermore, [*3]defendant did not preserve his contention that lawenforcement used excessive force to stop and detain him, as he failed to raise it in hisomnibus motion or at the suppression hearing (see People v Price, 112 AD3d 1345, 1345-1346 [2013];People v Gomez, 193 AD2d 882, 883 [1993], lv denied 82 NY2d 708[1993]).
Defendant also contends that his convictions were not supported by legally sufficientevidence and were against the weight of the evidence. In assessing whether a verdict islegally sufficient, we must consider the facts in the light most favorable to the People anddetermine whether "there is a valid line of reasoning and permissible inferences fromwhich a rational jury could have found the elements of the crime proved beyond areasonable doubt" (People vDanielson, 9 NY3d 342, 349 [2007] [internal quotation marks and citationsomitted]; accord People vDenson, 26 NY3d 179, 188 [2015]). By contrast, in a weight of the evidencereview, we first decide whether a different verdict would have been unreasonable and, ifnot, we then " 'weigh the relative probative force of conflicting testimony and therelative strength of conflicting inferences that may be drawn from thetestimony' " to determine whether the trier of fact accorded appropriate weight tothe evidence (People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542US 946 [2004], quoting People v Bleakley, 69 NY2d 490, 495 [1987]; see People v Cahill, 2 NY3d14, 58 [2003]).
With respect to the charge of criminal possession of a weapon in the second degree,the People were required to prove that defendant possessed a loaded firearm outside ofhis home or place of business (see Penal Law § 265.03 [3]; People v LaDuke, 140 AD3d1467, 1468 [2016]). The charge of reckless endangerment in the first degreerequired proof that, "under circumstances evincing a depraved indifference to human life,[the defendant] recklessly engage[d] in conduct which create[d] a grave risk of death toanother person" (Penal Law § 120.25; see People v Wells, 141 AD3d 1013, 1015 [2016]). Incases involving a discharged weapon, the firing of a gun, without more, is insufficient tosupport a reckless endangerment conviction; there must be evidence demonstrating thatthe discharge created a grave risk of death to a person (see People v Davis, 72NY2d 32, 36 [1988]; People vStanley, 108 AD3d 1129, 1131 [2013], lv denied 22 NY3d 959 [2013];People v Thompson, 75AD3d 760, 762 [2010], lv denied 15 NY3d 896 [2010]; People v Scott, 70 AD3d978, 979 [2010], lvs denied 15 NY3d 778, 809 [2010]).
At trial, one of the police officers testified that, during the pursuit, defendant,followed by the K-9 dog, rounded the corner of a building and that, given the officer'straining, he stopped at the corner and proceeded cautiously around it. He stated that hewas roughly 15 feet behind the K-9 dog at the time that he stopped and that, "[a]s [he]peered . . . out from the corner, [he] heard [gun]shots ring out. . . in [his] direction." The officer stated that, although he did not see thegun at the moment that it was discharged, once he rounded the corner he saw smoke,noticed the smell that accompanied the discharge of a firearm and, because of histraining, was able to discern that the gun had been fired in his direction. When defendantwas ultimately apprehended, he stated that he had discarded the firearm during thepursuit. A gun and spent shell casings were subsequently discovered in close proximityto where the K-9 dog had apprehended defendant and it was later determined that therecovered gun was loaded and operable. The trial evidence further established that thespent shell casings found at the scene were the same type and caliber as those in thediscarded firearm and that a bullet that was extracted from the license plate of a vehiclethat was in the area had been fired from that gun.
While the officer closest to defendant and the K-9 dog testified that he believed thatthe gunshots were intended for the K-9 dog, the mens rea element of recklessendangerment in the first degree does not require proof that a defendant intended toshoot at another person; it [*4]requires proof that, with" 'utter disregard for the value of human life' " (People v Feingold, 7 NY3d288, 296 [2006], quoting People v Suarez, 6 NY3d 202, 214 [2005]), he or she was"aware of and consciously disregard[ed] a substantial and unjustifiable risk that [a] resultw[ould] occur or that [a particular] circumstance exist[ed]" and that the disregard of thisrisk "constitute[d] a gross deviation from the standard of conduct that a reasonableperson would [have] observe[d] in the situation" (Penal Law § 15.05 [3]; see People v Mitchell, 94AD3d 1252, 1254 [2012], lv denied 19 NY3d 964 [2012]). The trialevidence demonstrated that defendant was aware that law enforcement was in closepursuit behind the K-9 dog when he shot in their direction and disregarded the risk thatone of the officers could be gravely injured. Accordingly, the conviction of recklessendangerment in the first degree is supported by legally sufficient evidence (see People v Heesh, 94 AD3d1159, 1161-1162 [2012], lv denied 19 NY3d 961 [2012]; People v Yellen, 30 AD3d634, 635-636 [2006], lv denied 8 NY3d 951 [2007]; People vMillan, 155 AD2d 621, 622-623 [1989], lv denied 75 NY2d 815 [1990])and, although a contrary finding would not have been unreasonable, we are satisfied thatthe guilty finding was not against the weight of the evidence (see People v Mann, 63 AD3d1372, 1373-1374 [2009], lv denied 13 NY3d 861 [2009]). Further, uponconsideration of defendant's admission that he dropped the gun during the pursuit andsince the discarded weapon and shell casings were discovered nearby, we are similarlysatisfied that defendant's conviction for criminal possession of a weapon in the seconddegree is supported by legally sufficient evidence and was not against the weight of theevidence (see People vHawkins, 110 AD3d 1242, 1243 [2013], lv denied 22 NY3d 1041[2013]; People v Mann, 63 AD3d at 1373-1374).
Lastly, we are unpersuaded by defendant's sentencing challenges. County Courtlawfully imposed consecutive sentences on defendant's convictions, as the trial evidencedemonstrated that he knowingly and unlawfully possessed a loaded firearm before heopened fire (see People vBrown, 21 NY3d 739, 749-752 [2013]; People v Mitchell, 118 AD3d 1417, 1418-1419 [2014],lv denied 24 NY3d 963 [2014]; People v Rodriguez, 118 AD3d 451, 452 [2014], lvdenied 24 NY3d 964 [2014]). Furthermore, considering defendant's criminal historyand that his conduct evinced a complete disregard for public safety and endangered thelaw enforcement officers involved in his pursuit, County Court's imposition of themaximum permissible sentence was not an abuse of discretion and we discern noextraordinary circumstances that would warrant a reduction of defendant's sentence(see People v Mann, 63 AD3d at 1374; People v Ryan, 46 AD3d 1125, 1128 [2007], lvdenied 10 NY3d 939 [2008]).
To the extent that any of defendant's contentions have not been expressly addressedherein, they have been examined and found to be without merit.
Garry, J.P., Egan Jr., Devine and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:These additionalobserved traffic violations provided further grounds for the traffic stop (seeVehicle and Traffic Law § 1172 [a]; People v Douglas, 42 AD3d 756, 757 [2007], lvdenied 9 NY3d 922 [2007]; People v Davis, 32 AD3d 445, 445 [2006], lvdenied 7 NY3d 924 [2006]).