| People v Lawson |
| 2018 NY Slip Op 05493 [163 AD3d 996] |
| July 25, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Davan Lawson, Appellant. |
Randall D. Unger, Bayside, NY, for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Merri Turk Lasky, and John F. McGoldrick of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (LeslieLeach, J.), rendered July 14, 2016, convicting him of criminal possession of a weapon in thesecond degree (two counts), criminal possession of a weapon in the third degree (three counts),and unauthorized use of a vehicle in the third degree, upon a jury verdict, and imposing sentence.The appeal brings up for review the denial, after a hearing, of that branch of the defendant'somnibus motion which was to suppress certain physical evidence.
Ordered that the judgment is affirmed.
On August 22, 2012, at approximately 8:50 p.m., a police officer observed a red Camarotraveling recklessly through an intersection in Queens. Approximately 30 to 40 seconds later, thepolice officer received a police radio transmission concerning a shooting that had occurred in thedirection from which the Camaro was traveling. At approximately 9:20 p.m., the police stoppedthe defendant, who was driving a red Camaro without its headlights on, 20 to 25 blocks awayfrom the scene of the shooting. The officer who effectuated the stop drew his gun, and orderedthe defendant, who had already exited the car, not to move. The defendant was then handcuffedand frisked. The officer observed several bullet cartridges in plain view inside the red Camaro.Within minutes, a civilian informed police officers who had gathered in response to the stop that,just prior to the stop, he observed the Camaro on his block and the driver of the Camaro walkingdown the street, approximately 1
Prior to trial, the defendant moved, inter alia, to suppress physical evidence. Following ahearing, the Supreme Court, among other things, denied that branch of the defendant's omnibusmotion which was to suppress certain physical evidence.
At trial, there was testimony that at approximately 9:15 p.m. on August 22, 2012, a witnessobserved a black male in his backyard. A police officer testified that, from that witness'sbackyard, he looked over the fence and observed a rifle and two handguns in the neighboring[*2]backyard. The People presented testimony that all of thefirearms and the ammunition tested were operable. DNA evidence revealed that the defendant'sbrother was a major contributor to DNA found on the handguns and that the defendant was morethan twice as likely than not to be a contributor to DNA found on the rifle. After trial, thedefendant was convicted of several counts charged in the indictment.
The defendant appeals from the judgment of conviction, which brings up for review thedenial of that branch of his omnibus motion which was to suppress the bullet the policerecovered from his pocket and the ammunition recovered from the red Camaro.
In evaluating police conduct, the court must determine whether the actions taken werejustified at every stage of the encounter (see People v De Bour, 40 NY2d 210, 223[1976]; People v Finlayson, 76 AD2d 670, 678 [1980]). A forcible stop and seizure bythe police requires reasonable suspicion of criminal activity (see People v Spencer, 84NY2d 749, 753 [1995]; People v Sobotker, 43 NY2d 559, 563 [1978]). "Reasonablesuspicion" has been defined as "the quantum of knowledge sufficient to induce an ordinarilyprudent and cautious man under the circumstances to believe that criminal activity is at hand"(People v Sobotker, 43 NY2d at 564). "To achieve a level of reasonability, the policeofficer's suspicion must be 'based upon specific and articulable facts which, taken together withrational inferences from those facts, reasonably warrant [the] intrusion' " (People vRiggio, 202 AD2d 609, 610 [1994], quoting Terry v Ohio, 392 US 1, 21 [1968];see People v Hicks, 68 NY2d 234, 238 [1986]). "Resolution of the issue of whether [apolice officer] possessed reasonable suspicion requires evaluation of the totality of thecircumstances" (People v Loper,115 AD3d 875, 879 [2014]).
Contrary to the People's contention, the defendant's suppression claim is preserved forappellate review (see CPL 470.05 [2]; People v Miles, 58 AD3d 872 [2009]). Nevertheless, thesuppression record demonstrates that the stop and subsequent police actions were based onreasonable suspicion, as evaluated on a totality of the circumstances (see People vChestnut, 51 NY2d 14, 21 [1980]; People v Bowers, 148 AD3d 1042, 1043 [2017]; People vLoper, 115 AD3d at 879; People v Finlayson, 76 AD2d at 679), which escalated toprobable cause for an arrest (see People v Finlayson, 76 AD2d at 681). The defendantwas driving the red Camaro without its headlights on when he was stopped within close temporaland geographic proximity to the scene of a shooting. The car substantially matched thedescription of a Camaro that had been seen driving recklessly seconds prior to a police radiotransmission regarding a shooting in the area and, again, minutes later, speeding past the samearea (see People v Jogie, 51 AD3d1038, 1039 [2008]; People v Heyward, 303 AD2d 522, 523 [2003]; People vDevorce, 293 AD2d 550 [2002]). Once stopped, the defendant exited the Camaro on hisown. A police officer "may take appropriate self-protective measures when he lawfully confrontsan individual and reasonably believes him to be armed or otherwise dangerous" (People vFinlayson, 76 AD2d at 678). Moreover, the cartridges recovered from the Camaro, whichwere in plain view (see People v Hernandez, 125 AD2d 492, 493 [1986]; People vGreene, 104 AD2d 601, 606-607 [1984]), provided additional indicia of criminality (cf.People v Riddick, 110 AD2d 787 [1985]), and the bullet recovered from the defendant'spants pocket was found incident to his lawful arrest (see People v Jones, 13 AD3d 393, 393 [2004]). Therefore, thatbranch of the defendant's omnibus motion which was to suppress those items was properlydenied.
The defendant's contention that the evidence was legally insufficient to support hisconvictions is not preserved for appellate review (see People v Finger, 95 NY2d 894, 895[2000]; People v Stewart, 11 AD3d568, 568 [2004]; People v Cannon, 300 AD2d 407, 408 [2002]). In any event,viewing the evidence in the light most favorable to the prosecution (see People v Contes,60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish the defendant's guiltbeyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independentreview of the weight of the evidence (see CPL 470.15 [5]), we nevertheless accord greatdeference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People v Jenkins, 81 AD3d 662,662 [2011]). Upon reviewing the record here, we are satisfied that the verdict of guilt was notagainst the weight of evidence (seePeople v Romero, 7 NY3d 633, 643-644 [2006]).
The defendant's contention that the prosecutor made improper remarks during summation,depriving him of his right to a fair trial, is not preserved for appellate review (see CPL470.05 [2]; People v Alvarado, 126AD3d 803, 805 [2015]; People vCharlton, 27 AD3d 658, 658 [2006]). The defendant either did not object to the remarksat issue or made only general one-word objections, and [*3]to theextent the trial court sustained his objections, the defendant neither objected to the court'scurative instructions nor requested additional instructions (see People v Comer, 73 NY2d955, 957 [1989]; People v Tardbania, 72 NY2d 852, 853 [1988]; People vCharlton, 27 AD3d at 658). Moreover, the defendant's post-summations motion for a mistrialwas untimely and failed to preserve his contentions (see CPL 470.05; People vAlvarado, 126 AD3d at 804; People v Morris, 148 AD2d 552, 552 [1989]). In anyevent, the defendant's contentions are without merit as the challenged remarks were, for the mostpart, either fair response to defense counsel's arguments, fair comment on the evidence, or relatedto matters which were fairly inferable from the evidence (see People v Charlton, 27AD3d at 658-659). To the extent any remarks were improper, the errors were mitigated by thecourt's curative instructions, which the jury is presumed to have followed (see People v Baker, 14 NY3d 266,273-274 [2010]; People v Elder, 152AD3d 787, 789 [2017]; People vWilliams, 123 AD3d 1152, 1154 [2014], affd 29 NY3d 84 [2017]). Accordingly,there was no cumulative effect of the errors that deprived the defendant of a fair trial and,therefore, reversal is not warranted (see People v White, 196 AD2d 641, 641 [1993]).Mastro, J.P., Cohen, Connolly and Brathwaite Nelson, JJ., concur.