| People v Daniels |
| 2017 NY Slip Op 00850 [147 AD3d 1392] |
| February 3, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v MarshallDaniels, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of counsel), fordefendant-appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Julie Bender Fiske of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.), rendered July21, 2014. The judgment convicted defendant, upon a nonjury verdict, of criminal possession of aweapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a nonjury verdict of criminalpossession of a weapon in the second degree (Penal Law § 265.03 [3]), defendantcontends that County Court erred in refusing to suppress the gun that he discarded while he wasbeing pursued by the police, as well as statements that he made to the police after his arrest. Wereject that contention.
" 'Great weight must be accorded to the determination of the suppression courtbecause of its ability to observe and assess the credibility of the witnesses, and its findings shouldnot be disturbed unless clearly erroneous or unsupported by the hearing evidence' " (People v Johnson, 138 AD3d1454, 1454 [2016], lv denied 28 NY3d 931 [2016]; see People v Layou, 134 AD3d1510, 1511 [2015], lv denied 27 NY3d 1070 [2016], reconsideration denied28 NY3d 932 [2016]). At the suppression hearing, two police officers testified that they weretraveling in a marked patrol vehicle on a warm summer day when they observed defendantwalking down the street wearing black gloves. When the officer who was operating the vehicleslowed down, defendant turned and looked at the vehicle, and he then pulled out a gun andstarted to run. The officer stopped the vehicle, and the other officer exited the vehicle, pursueddefendant on foot, and observed defendant throw the gun toward a house. Eventually, defendantwas apprehended and a loaded gun was recovered from the lawn outside the house.
We conclude that the presence of a gun on defendant's person combined with his flight gavethe police " 'reasonable suspicion that defendant may have been engaged in criminalactivity justifying police pursuit' " (People v Wilson, 49 AD3d 1224, 1224 [2008], lv denied 10NY3d 966 [2008]; see People vKnight, 94 AD3d 1527, 1529 [2012], lv denied 19 NY3d 998 [2012]).Defendant's abandonment of the gun during that pursuit provided the police with probable causefor defendant's arrest (see People vGayden, 126 AD3d 1518, 1518-1519 [2015], affd 28 NY3d 1035 [2016];Wilson, 49 AD3d at 1224-1225), and their recovery of the abandoned gun was lawfulinasmuch as the pursuit of defendant was lawful (see Gayden, 126 AD3d at 1519).Furthermore, because the officers' conduct was lawful, the court properly refused to suppress asfruit of the poisonous tree the oral statements defendant made to the police after his arrest (see People v Sims, 106 AD3d1473, 1474 [2013], appeal dismissed 22 NY3d 992 [2013]).
We also reject defendant's contention that the conviction is not supported by legallysufficient evidence because of breaks in the chain of custody of the gun recovered from the lawnof the house. It is well settled that "breaks in the chain of custody affect only the weight to begiven to that evidence" (People vCraven, 48 AD3d 1183, 1185 [2008], lv denied 10 NY3d 861 [2008]; see People v Brown-Fort, 13 AD3d731, 732 [2004]; see generallyPeople v Jefferson, 125 AD3d 1463, 1464 [2015], lv denied 25 NY3d 990[2015]). Viewing the evidence in light of the elements of the crime in this nonjury trial (see People v Danielson, 9 NY3d342, 349 [2007]), we further conclude that the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Finally, thesentence is not unduly harsh or severe. Present—Carni, J.P., Lindley, DeJoseph, Curranand Troutman, JJ.