| People v Smith |
| 2019 NY Slip Op 00314 [168 AD3d 885] |
| January 16, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Ramel Smith, Appellant. |
Janet E. Sabel, New York, NY (Paul Wiener of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Ellen C. Abbot, and John F. McGoldrick of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (James P.Griffin, J.), rendered July 29, 2014, convicting him of assault in the first degree, criminalpossession of a weapon in the second degree (two counts), and criminal possession of a weaponin the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for reviewthe denial, after a hearing (Steven Paynter, J.), of that branch of the defendant's omnibus motionwhich was to suppress physical evidence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court properly denied that branch of thedefendant's omnibus motion which was to suppress physical evidence. "A forcible stop is notpermitted unless there is a reasonable suspicion that an individual is committing, has committed,or is about to commit a crime" (People vNoble, 154 AD3d 883, 884 [2017]). "Reasonable suspicion has been defined as 'thatquantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under thecircumstances to believe criminal activity is at hand' " (People v Bowers, 148 AD3d 1042,1043 [2017], quoting People v Martinez, 80 NY2d 444, 448 [1992] [internal quotationmarks omitted]).
Here, police officers initially had a founded suspicion that criminal activity was afoot,triggering a common-law right of inquiry, based upon their observations of the defendant and acompanion "huddled" together on a street in close proximity to the location of a reportedshooting, with no one else in the vicinity, and that the defendant had "his hand in his jacket" asthe police officers drove by the two men (see People v Baksh, 125 AD3d 988, 989 [2015]; People v Davis, 106 AD3d 144,151 [2013]). The level of suspicion escalated to the level of reasonable suspicion when thedefendant and his companion started walking away "at a high rate of speed" after the policeofficers, who had returned to the location of the shooting, turned their vehicle back onto thestreet where the defendant and his companion were standing, and the officers observed thedefendant toss an object into an alleyway while walking away (see People v Austin, 100 AD3d1010, 1011 [2012]; People v Jenkins, 209 AD2d 164 [1994]). Once the policeofficers temporarily detained the defendant, they possessed probable cause to arrest him basedupon the discovery that the thrown object was a gun (see People v LaFontant, 46 AD3d 840, 842 [2007]; People vJenkins, 209 AD2d 164 [1994]). Accordingly, we agree with the hearing court's denial of thatbranch of the defendant's omnibus motion which was to suppress physical evidence.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of assault in the first degree beyond a reasonable doubt. Specifically, andcontrary to the defendant's contention, the evidence was legally sufficient to establish that thecomplainant sustained a "serious physical injury" within the meaning of Penal Law§ 10.00 (10) (see People vGarland, 155 AD3d 527, 528 [2017], affd 32 NY3d 1094 [2018]; People v Lindsay, 131 AD3d 625,626 [2015]). Moreover, in fulfilling our responsibility to conduct an independent review of theweight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference 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 Bleakley, 69NY2d 490, 495 [1987]). Upon our independent review pursuant to CPL 470.15 (5), we aresatisfied that the verdict of guilt on the count of assault in the first degree was not against theweight of the evidence (see People v Danielson, 9 NY3d at 348; People v Romero, 7 NY3d 633[2006]).
As the defendant asserts, the People's motion to compel him to submit to a buccal swab forDNA testing was untimely pursuant to CPL 240.90, and the People failed to adequately explainthe delay. However, the fact that the motion was untimely made does not mean that theadmission of evidence concerning the defendant's refusal to provide a DNA sample warrantsreversal, since the defendant did not suffer any prejudice by reason of the four-month delay (see People v Young, 160 AD3d1206, 1209 [2018]; People vRuffell, 55 AD3d 1271 [2008]) and the error did not implicate the defendant'sconstitutional rights (see People vCox, 161 AD3d 1100, 1101 [2018]; People v Vieweg, 155 AD3d 1305, 1308 [2017]). Dillon, J.P.,Barros, Iannacci and Christopher, JJ., concur.