| People v Habeeb |
| 2019 NY Slip Op 08025 [177 AD3d 1271] |
| November 8, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Jermaine Habeeb, Appellant. (Appeal No.1.) |
Riordan & Scalione, Amherst (Scott F. Riordan of counsel), fordefendant-appellant.
John J. Flynn, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns,J.), rendered June 17, 2015. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him,upon a jury verdict, of criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]), arising from a traffic stop during which defendant, apassenger in the vehicle, pulled a .40 caliber handgun from his waistband and threw itacross the street. In appeal No. 2, defendant appeals from a judgment convicting him,upon the same jury verdict, of, inter alia, criminal possession of a weapon in the seconddegree (§ 265.03 [3]), arising from a separate incident in which policeofficers observed him throwing an object, which was subsequently identified as a 9millimeter semi-automatic pistol, over a fence.
We reject defendant's contention in appeal No. 1 that Supreme Court erred inrefusing to suppress the .40 caliber handgun seized following the stop of the vehicle inwhich defendant was a passenger. The officers' observation that the vehicle's licenseplate lamp was unlit, an equipment violation, provided a lawful basis to stop the vehicle(see People v Gibbs, 167AD3d 1580, 1580 [4th Dept 2018], lv denied 33 NY3d 976 [2019]), and theofficers were authorized to detain defendant for the purpose of issuing a traffic summonsbased on defendant's failure to wear a seatbelt (see People v Simms, 25 AD3d 425, 425 [1st Dept2006], lv denied 6 NY3d 838 [2006]). Defendant's act of discarding the handgunduring the lawful traffic stop was an independent act that involved a calculated risk andwas not prompted by any unlawful police conduct (see People v Isidro, 6 AD3d 1234, 1235 [4th Dept 2004],lv denied 3 NY3d 659 [2004]), and defendant thus had no right to object to theseizure of the handgun by the police (see People v Brown, 148 AD3d 1562, 1564 [4th Dept2017], lv denied 29 NY3d 1124 [2017]).
We reject defendant's further contention in appeal No. 1 that the verdict convictinghim of criminal possession of a weapon in the second degree is inconsistent because hewas acquitted of criminal possession of a controlled substance in the fifth degree (PenalLaw § 220.06 [5]) and criminal possession of a controlled substance in theseventh degree (§ 220.03). Defendant's acquittal of the drug possessioncounts did not necessarily negate an essential element of the weapon possession count(see People v Goodfriend, 64 NY2d 695, 697 [1984]; People v Strauss, 147 AD3d1426, 1426-1427 [4th Dept 2017], lv denied 29 NY3d 1087 [2017],denied reconsideration 30 NY3d 953 [2017]), and thus the verdict, "when viewedin light of the elements of each crime as charged to the jury," is not inherentlyinconsistent (People v Tucker, 55 NY2d 1, 4 [1981], rearg denied 55NY2d 1039 [1982]; see People v Putt, 303 AD2d 992, 992 [4th Dept 2003]).Moreover, viewing the evidence in light of the elements of the crime of criminalpossession of a weapon in the second degree as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's contention that the verdict in appealNo. 1 is against the weight of the evidence (see generally People v Bleakley, 69NY2d 490, 495 [1987]). Two police officers testified that they observed defendantremove from his waistband a black semi-automatic handgun and then throw it across thestreet. The loaded .40 caliber handgun was collected by the police and test-fired by afirearms examiner, who subsequently determined that the handgun was operable, and aDNA expert testified that defendant's DNA profile matched a DNA profile obtained fromthe handgun. In contrast, the evidence of defendant's possession of a controlled substancewas entirely circumstantial, and the jury could have reasonably concluded from theevidence that the officer's discovery of a vial of cocaine on the ground near defendant'sperson was insufficient to establish that he knowingly and unlawfully possessed thecocaine (see People vDelancy, 81 AD3d 1446, 1446 [4th Dept 2011], lv denied 17 NY3d 794[2011]).
We reject defendant's contention in appeal No. 2 that the court erred in refusing tosuppress the pistol that defendant allegedly discarded while being pursued by the police.An officer approached defendant on the basis of information provided by a personpresent at the scene of a fight to which several officers were responding, and the Peopleestablished the reliability of the unnamed citizen informant by establishing that theofficer obtained the information from her during a face-to-face encounter (see People v Rios, 11 AD3d641, 642 [2d Dept 2004], lv denied 4 NY3d 747 [2004]). That informationdid not constitute an anonymous tip (see People v McCutcheon, 125 AD2d 603,603-604 [2d Dept 1986], lv denied 70 NY2d 651 [1987]), and the officer wasjustified in acting on the information provided by the citizen in approaching defendant(see People v Dixon, 289 AD2d 937, 937-938 [4th Dept 2001], lv denied98 NY2d 637 [2002]). Furthermore, "a defendant's flight in response to an approachby the police . . . may give rise to reasonable suspicion" when accompaniedby additional information suggestive of criminal activity (People v Sierra, 83NY2d 928, 929 [1994]). Here, defendant's actions in retreating from the officer after sheaddressed him and in jumping over a fence elevated the officer's level of suspicion andprovided the predicate necessary to justify the pursuit of defendant (see People v Hillard, 79 AD3d1757, 1758 [4th Dept 2010], lv denied 17 NY3d 796 [2011]; seegenerally People v Holmes, 81 NY2d 1056, 1058 [1993]), and defendant'sabandonment of the pistol in the course of the pursuit provided probable cause for hisarrest (see People v Daniels,147 AD3d 1392, 1393 [4th Dept 2017], lv denied 29 NY3d 1077 [2017]).The recovery of the disassembled components of the abandoned pistol was lawfulinasmuch as the officer's pursuit of defendant was lawful (see People v Gayden, 126AD3d 1518, 1519 [4th Dept 2015], affd 28 NY3d 1035 [2016]).
Defendant further contends in appeal No. 2 that the evidence is legally insufficient toestablish the operability of the pistol and that the verdict is against the weight of theevidence. We reject those contentions. Viewing the evidence in the light most favorableto the People (see People vConway, 6 NY3d 869, 872 [2006]), we conclude that the evidence is legallysufficient to establish that the pistol was both loaded (see Penal Law§§ 265.00 [15]; 265.03 [3]) and operable (see People v Cruz,272 AD2d 922, 922 [4th Dept 2000], affd 96 NY2d 857 [2001]; People vLongshore, 86 NY2d 851, 852 [1995]). Although the pistol became disassembledwhen it struck the ground and the magazine and ammunition scattered upon impact, it iswell settled that a weapon rendered temporarily inoperable, by disassembly or otherwise,may constitute an operable firearm (see People v Solomon, 78 AD3d 1426, 1428 [3d Dept2010], lv denied 16 NY3d 899 [2011]; People v Velez, 278 AD2d 53, 53[1st Dept 2000], lv denied 96 NY2d 808 [2001]; People v Lugo, 161AD2d 122, 123 [1st Dept 1990], lv denied 76 NY2d 860 [1990]).
Viewing the evidence in light of the elements of the crime of criminal possession of aweapon in the second degree as charged to the jury (see Danielson, 9 NY3d at349), we further conclude that the verdict in appeal No. 2 is not against the weight of theevidence with respect to that count (see generally Bleakley, 69 NY2d at 495). Inaddition to the testimony of the eyewitnesses who either observed defendant throw ablack object over the fence or observed the pistol fly over the fence and land near theirfeet, the People presented evidence that a DNA sample taken from the pistol wasconsistent with defendant's DNA profile, which supports an inference that defendant hadphysically possessed the pistol (see People v Ward, 104 AD3d 1323, 1324 [4th Dept 2013],lv denied 21 NY3d 1011 [2013]; People v Robinson, 72 AD3d 1277, 1278 [3d Dept 2010],lv denied 15 NY3d 809 [2010]). Present—Carni, J.P., Lindley, DeJoseph,Curran and Winslow, JJ.