| People v Jones |
| 2017 NY Slip Op 07808 [155 AD3d 1547] |
| November 9, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v JahariJones, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.),rendered February 22, 2013. The judgment convicted defendant, upon a jury verdict, of assault inthe first degree and criminal possession of a weapon in the second degree (two counts).
It is hereby ordered that the case is held, the decision is reserved and the matter is remitted toSupreme Court, Onondaga County, for further proceedings.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofassault in the first degree (Penal Law § 120.10 [1]), and two counts of criminalpossession of a weapon in the second degree (§ 265.03 [3]). The assault count andthe first weapon count charged defendant with possessing a handgun and using it to shoot a manin December 2011, and the second weapon count charged him with possessing the same handgunin January 2012.
Defendant contends that he was deprived of a fair trial by numerous acts of allegedmisconduct by the prosecutor on summation. Defendant did not object to any of those instancesof alleged misconduct, and thus he failed to preserve his contention for our review (see People v Lane, 106 AD3d1478, 1480 [4th Dept 2013], lv denied 21 NY3d 1043 [2013]; People v Rumph, 93 AD3d 1346,1347 [4th Dept 2012], lv denied 19 NY3d 967 [2012]). In any event, we rejectdefendant's contention. The majority of the comments challenged by defendant on appeal werewithin " 'the broad bounds of rhetorical comment permissible' " duringsummations (People v Williams, 28AD3d 1059, 1061 [4th Dept 2006], affd 8 NY3d 854 [2007], quoting People vGalloway, 54 NY2d 396, 399 [1981]; see People v McEathron, 86 AD3d 915, 916 [4th Dept 2011], lvdenied 19 NY3d 975 [2012]). We note in particular that "the prosecutor's closing statementmust be evaluated in light of the defense summation, which put into issue the [witnesses']character and credibility and justified the People's response" (People v Halm, 81 NY2d819, 821 [1993]). Thus, we conclude that the prosecutor's comments at issue on summation were"a fair response to defense counsel's summation and did not exceed the bounds of legitimateadvocacy" (People v Melendez, 11AD3d 983, 984 [4th Dept 2004], lv denied 4 NY3d 888 [2005]; see generallyHalm, 81 NY2d at 821). Additionally, even assuming, arguendo, that any of the prosecutor'scomments may have exceeded the bounds of propriety, we further conclude that such comments" 'were not so pervasive or egregious as to deprive defendant of a fair trial' " (People v Jackson, 108 AD3d 1079,1080 [4th Dept 2013], lv denied 22 NY3d 997 [2013]; see People v Miller, 104 AD3d1223, 1224 [4th Dept 2013], lv denied 21 NY3d 1017 [2013]). We have considereddefendant's further claims of prosecutorial misconduct and conclude that they are withoutmerit.
Defendant further contends that he was deprived of effective assistance of counsel because ofnumerous alleged errors by defense counsel, including the failure to object to prosecutorialmisconduct, the improper cross-examination of a witness, and the failure to introduce certainevidence. We reject defendant's contention with respect to alleged prosecutorial misconduct onsummation. As noted above, any such misconduct was "not so egregious as to deprive defendantof a fair trial, [and therefore] defense counsel's failure to object thereto did not deprive defendantof effective assistance of counsel" (People v Lewis, 140 AD3d 1593, 1595 [4th Dept 2016], lvdenied 28 NY3d 1029 [2016]; seePeople v Lewis, 151 AD3d 1727, 1729 [4th Dept 2017], lv denied 29 NY3d1129 [2017]; People v Henley, 145AD3d 1578, 1580 [4th Dept 2016], lv denied 29 NY3d 998 [2017], deniedreconsideration 29 NY3d 1080 [2017]). In addition, defendant failed to meet his burden ofdemonstrating "the absence of strategic or other legitimate explanations" for counsel's allegeddeficiencies in cross-examining a prosecution witness (People v Rivera, 71 NY2d 705,709 [1988]; see People v Wallace,60 AD3d 1268, 1271 [4th Dept 2009], lv denied 12 NY3d 922 [2009]). Defendant'sclaim that he was deprived of effective assistance of counsel by defense counsel's failure tointroduce evidence that the weapon at issue was a "community gun" is based on matters outsidethe record and thus cannot be reviewed on direct appeal (see People v Rohlehr, 87 AD3d 603, 604 [2d Dept 2011]; People v Dawkins, 81 AD3d 972,972 [2d Dept 2011], lv denied 17 NY3d 794 [2011], denied reconsideration 17NY3d 858 [2011]). We have considered defendant's remaining claims of ineffective assistance ofcounsel, and we conclude that he was afforded meaningful representation (see generallyPeople v Baldi, 54 NY2d 137, 147 [1981]).
Defendant failed to preserve for our review his contention that the People failed to establishwith respect to the January weapon count that the firearm was operable, i.e., that it was loadedwith operable ammunition. His motion for a trial order of dismissal was not specifically directedat that alleged deficiency in the People's proof (see People v Gray, 86 NY2d 10, 19[1995]). In any event, that contention is without merit. A firearms examiner testified that hetest-fired the weapon with the ammunition found in it, and thus the evidence, viewed in the lightmost favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), is legallysufficient to support the conviction with respect to the January weapon count (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). Furthermore, viewing the evidence withrespect to all three counts of which defendant was convicted in light of the elements of the crimesas charged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against theweight of the evidence (see generally Bleakley, 69 NY2d at 495).
Defendant further contends that Supreme Court erred in refusing to suppress the weapon andother evidence seized by the police after the police pursued, detained, and searched him becausethe officer lacked the requisite reasonable suspicion that he was involved in criminal activity. Wereject that contention.
The Court of Appeals has promulgated a "graduated four-level test for evaluating streetencounters initiated by the police" (People v Moore, 6 NY3d 496, 498 [2006]). The Court explainedthat "level one permits a police officer to request information from an individual and merelyrequires that the request be supported by an objective, credible reason, not necessarily indicativeof criminality; level two, the common-law right of inquiry, permits a somewhat greater intrusionand requires a founded suspicion that criminal activity is afoot; level three authorizes an officerto forcibly stop and detain an individual, and requires a reasonable suspicion that the particularindividual was involved in a felony or misdemeanor; level four, arrest, requires probable cause tobelieve that the person to be arrested has committed a crime" (id. at 498-499; seegenerally People v De Bour, 40 NY2d 210, 222-223 [1976]).
Here, the People contend that the officer who confronted defendant had a founded suspicionthat criminal activity was afoot, and that his initial approach of defendant was therefore properunder level two. It is well settled that, in determining whether the officer had the requisitefounded suspicion, the court must consider the totality of the circumstances (see People v Mercado, 120 AD3d441, 442 [1st Dept 2014], affd 25 NY3d 936 [2015]) including, inter alia, the natureand location of the area in which the stop occurs (see People v Bronston, 68 NY2d 880,881 [1986]). Here, the evidence at the hearing established that the neighborhood in question is ahigh-crime area in which violent gang activity occurs frequently. The evidence at the hearing alsoestablished that, before exiting an unmarked police vehicle to approach defendant, the officerobserved defendant and two others acting furtively while keeping their hands under theirsweatshirts at the waistbands of their pants. The officer testified at the hearing that an informanttold him that a man fitting defendant's description had run from the scene of an incident thatoccurred one day before the stop, and that shots were fired during that incident. The informantalso told the officer that the man lived in the 100 block of Alvord Street and was a member of agang known as the Highland Street Boys. The officer had learned that the weapon used in thatincident was a .380 caliber weapon, the same caliber as the weapon used in the shooting in thiscase, which had taken place in the same vicinity a few weeks earlier. Furthermore, the officerknew that defendant lived in the 100 block of Alvord Street and was a member of theaforementioned gang. Based on that information, we agree with the People that the officer had atleast the requisite founded suspicion that criminal activity was afoot, and thus that his initialapproach of defendant was proper under level two.
When defendant then immediately fled, the officer pursued him, which was a level threeintrusion requiring reasonable suspicion that defendant had committed or was committing acrime. "In determining whether a pursuit was justified by reasonable suspicion, the emphasisshould not be narrowly focused on . . . any . . . single factor, but [rathershould be based] on an evaluation of the totality of circumstances, which takes into account therealities of everyday life unfolding before a trained officer" (People v Bachiller, 93 AD3d 1196, 1197 [4th Dept 2012], lvdismissed 19 NY3d 861 [2012] [internal quotation marks omitted]; see People v Corona, 142 AD3d889, 889 [1st Dept 2016], lv denied 28 NY3d 1144 [2017]). We also note that,although "flight alone is insufficient to justify pursuit, 'defendant's flight in response to anapproach by the police, combined with other specific circumstances indicating that thesuspect may be engaged in criminal activity, may give rise to reasonable suspicion, thenecessary predicate for police pursuit' " (People v Rainey, 110 AD3d 1464, 1465 [4th Dept 2013], quotingPeople v Sierra, 83 NY2d 928, 929 [1994]; see People v Walker, 149 AD3d 1537, 1538 [4th Dept 2017]; People v Price, 109 AD3d 1189,1190 [4th Dept 2013], lv denied 22 NY3d 1043 [2013]). Here, we agree with the Peoplethat the specific information known to the officer, coupled with the officer's observations ofdefendant's actions, furtive behavior, and immediate flight, gave the officer reasonable suspicionto believe that defendant was engaged in criminal activity, thereby justifying the officer's pursuit,detainment, and search of defendant.
We agree with defendant, however, that the court erred in failing to determine whether heshould be afforded youthful offender status (see generally People v Rudolph, 21 NY3d 497, 501 [2013]).Defendant was convicted of an armed felony offense and therefore is ineligible for a youthfuloffender adjudication unless the court determines that certain statutory factors exist (seeCPL 720.10 [3] [i]). "If the court determines, in its discretion, that neither of the CPL 720.10 (3)factors exist and states the reasons for that determination on the record, no further determinationby the court is required. If, however, the court determines that one or more of the CPL 720.10 (3)factors are present, and the defendant is therefore an eligible youth, the court then mustdetermine whether or not the eligible youth is a youthful offender" (People v Dukes, 147 AD3d 1534,1535 [4th Dept 2017] [internal quotation marks omitted]; see People v Middlebrooks, 25 NY3d 516, 527 [2015]). Inasmuchas the court failed to follow the procedure set forth in Middlebrooks, we hold the case,reserve decision, and remit the matter to Supreme Court to "make and state for the record 'adetermination of whether defendant is a youthful offender' " (People v Wilson, 151 AD3d 1836,1837 [4th Dept 2017], quoting Rudolph, 21 NY3d at 503). Present—Smith, J.P.,Peradotto, Lindley, DeJoseph and Winslow, JJ.