| People v White |
| 2017 NY Slip Op 06560 [153 AD3d 1369] |
| September 20, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Oscar White, Appellant. |
David L. Cohen, Kew Gardens, NY, for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Eric C. Washer of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Griffin, J.),rendered October 9, 2014, convicting him of criminal possession of a controlled substance in thefourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, without a hearing (Lopez, J.), of that branch of the defendant's omnibus motion whichwas to suppress physical evidence. By decision and order dated March 30, 2016, this Courtremitted the matter to the Supreme Court, Queens County, for a hearing and a new determinationthereafter of that branch of the defendant's omnibus motion which was to suppress physicalevidence, and held the appeal in abeyance in the interim (see People v White, 137 AD3d 1311 [2016]). The Supreme Court,Queens County (Paynter, J.), has now filed its report.
Ordered that the judgment is affirmed.
On a motion by a defendant to suppress physical evidence, "the People have the burden ofgoing forward to show the legality of the police conduct in the first instance" (People vWhitehurst, 25 NY2d 389, 391 [1969] [emphasis omitted]; see People v Blinker, 80 AD3d619 [2011]; People vHernandez, 40 AD3d 777, 778 [2007]; People v Thomas, 291 AD2d 462, 463[2002]; People v Quinones, 61 AD2d 765 [1978]). The defendant, however, "bears theultimate burden of proving, by a preponderance of the credible evidence, that the evidence shouldnot be used against him" (People v Thomas, 291 AD2d at 463; see People vBerrios, 28 NY2d 361, 367 [1971]; People v Whitehurst, 25 NY2d at 391). "Thefactual findings and credibility determinations of the Supreme Court following a suppressionhearing are entitled to great deference on appeal and will not be disturbed unless clearlyunsupported by the record" (People vBaliukonis, 35 AD3d 626, 627 [2006]; see People v Prochilo, 41 NY2d 759, 761[1977]; People v Blinker, 80 AD3d619 [2011]; People v Johnson,79 AD3d 905 [2010]; People vCastro, 73 AD3d 800, 800-801 [2010]; People v Shackleford, 57 AD3d 578 [2008]).
Here, the Supreme Court properly determined that the People met their burden ofestablishing the legality of the police conduct by adducing evidence that the police officers wereperforming a routine neighborhood patrol in an unmarked vehicle, that they did not in any wayinterfere with the defendant, and that they observed the defendant throw a plastic bag containinga white substance to the ground and then begin to jog away as they approached his location.Property which is abandoned is outside the protection of constitutional provisions (see Peoplev Howard, 50 NY2d 583, 592-593 [1980]; People v Pittman, 14 NY2d 885 [1964]),since a purposeful divestment of possession of the property, which is not precipitated byunlawful police conduct, forfeits any expectation of [*2]privacyin the property (see People v Ramirez-Portoreal, 88 NY2d 99, 110-111 [1996]). Thecourt properly determined that the defendant abandoned the contraband in this case and thereforehad no standing to contest its subsequent seizure, since he failed to demonstrate that he threw theitem away in response to any unlawful police conduct.
The defendant's challenge to the credibility of the police officers who testified at the hearingis unavailing, as the few minor discrepancies in the police testimony were fully explored at thehearing, and there is no basis upon which to disturb the Supreme Court's credibilitydeterminations. In this regard, the court also properly declined to issue a subpoena seeking theproduction of the narcotics and packaging recovered in this case in order to establish the size ofthe object thrown by the defendant. The court was made aware of the minor inconsistency in thetestimony of two police officers regarding the size of the discarded contraband, and an adequaterecord existed for the court to resolve the material issue at the hearing—whether thedefendant abandoned the narcotics as the police testified (see People v Gaines, 232 AD2d328 [1996]; People v Sioba, 187 AD2d 317 [1992]). Thus, the production of the seizedevidence would not have served any valid purpose, and the court properly denied that branch ofthe defendant's omnibus motion which was to suppress physical evidence.
The defendant's contention that he was deprived of a fair trial by comments the prosecutormade on summation is unpreserved for appellate review (see CPL 470.05 [2]) because thedefendant either failed to object to the challenged comments, made only general objections, orfailed to request additional relief when an objection was sustained (see People v Romero, 7 NY3d 911[2006]; People v Then, 128 AD3d864 [2015], affd 28 NY3d 1170 [2017]; People v Salnave, 41 AD3d 872 [2007]). In any event, the remarkshe now challenges were responsive to the defense summation or constituted fair comment on theevidence or inferences drawn therefrom (see People v Ashwal, 39 NY2d 105 [1976]; People v Fuhrtz, 115 AD3d 760[2014]; People v Birot, 99 AD3d933 [2012]; People vGuevara-Carrero, 92 AD3d 693 [2012]). Accordingly, the defendant's contention that hewas denied a fair trial is without merit. Mastro, J.P., Chambers, Miller and Hinds-Radix, JJ.,concur.