| People v Jacque-Crews |
| 2023 NY Slip Op 00785 [213 AD3d 1335] |
| February 10, 2023 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Devine D. Jacque-Crews, Appellant. |
Erik Teifke, Acting Public Defender, Rochester (Clea Weiss of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Martin P. McCarthy, II, of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Charles A. Schiano,Jr., J.), rendered April 23, 2018. The judgment convicted defendant upon a jury verdictof criminal possession of a weapon in the second degree (two counts) and criminalpossession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of two counts of criminal possession of a weapon in the second degree (PenalLaw § 265.03 [1] [b]; [3]) and one count of criminal possession of aweapon in the third degree (§ 265.02 [3]). The charges arose from anincident in which defendant displayed a handgun during an altercation with several otherpeople, left the scene in a black Mercedes, returned and displayed a handgun again, andthen left the scene again in the same vehicle. He fled from that vehicle after it wasstopped by the police a short time later, and a firearm was recovered from a backpackthat Rochester police officers located on the path defendant took when he ran. Weaffirm.
Initially, defendant contends that all three crimes are facially unconstitutional underthe Second Amendment of the United States Constitution in light of the United StatesSupreme Court's decision in New York State Rifle & Pistol Assn., Inc. vBruen (597 US &mdash, 142 S Ct 2111 [2022]). As defendant correctly concedes,his challenge to the constitutionality of the statutes is not preserved for our reviewinasmuch as he failed to raise any such challenge during the proceedings in SupremeCourt (see People v Reese,206 AD3d 1461, 1462-1462 [3d Dept 2022]; People v Gerow, 85 AD3d 1319, 1320 [3d Dept 2011]; cf. People v Hughes, 22 NY3d44, 48-49 [2013]; seegenerally People v Reinard, 134 AD3d 1407, 1409 [4th Dept 2015], lvdenied 27 NY3d 1074 [2016], cert denied 580 US 969 [2016]). Contrary todefendant's contention, we conclude that his constitutional challenge is not exempt fromthe preservation rule (see People v Thomas, 50 NY2d 467, 472-473 [1980];cf. People v Patterson, 39 NY2d 288, 296 [1976], affd 432 US 197[1977]; see generally People vBaumann & Sons Buses, Inc., 6 NY3d 404, 408 [2006], rearg denied7 NY3d 742 [2006]).
Defendant's contention that the court erred in refusing to suppress the handgun thatthe police recovered from the backpack that he abandoned during his flight from thepolice is "based on a ground not raised before the suppression court and thus isunpreserved for our review" (People v Poole, 55 AD3d 1354, 1355 [4th Dept 2008],lv denied 11 NY3d 929 [2009]; see People v Zuke, 87 AD3d 1290, 1291 [4th Dept 2011],lv denied 18 NY3d 887 [2012]; cf. People v Walls, 37 NY3d 987, 989 [2021]). Althoughdefendant contended at the suppression hearing that the police lacked reasonablesuspicion to stop the vehicle in which he was riding, he did not challenge the reliabilityof the citizen who called 911 to report the incident, nor did he challenge the arrestingofficer's reliance on the ensuing radio dispatch. "Under the fellow officer rule, [a] policeofficer is entitled to act on the strength of a radio bulletin . . . from a fellowofficer or [*2]department and to assume its reliability. . . Under those circumstances, the agency or officer transmitting theinformation presumptively possesses the requisite [reasonable suspicion]. . . However, where . . . defendant challenges the reliability ofthe information transmitted to the arresting officers, the presumption of [reasonablesuspicion] disappears and it becomes incumbent upon the People to establish that theofficer or agency imparting the information . . . in fact possessed[reasonable suspicion] to act" (People v Searight, 162 AD3d 1633, 1634-1635 [4th Dept2018] [internal quotation marks omitted]; see People v Landy, 59 NY2d 369, 375[1983]; see also People v Fenner, 61 NY2d 971, 973 [1984]). Inasmuch asdefendant did not challenge the reliability of the radio transmissions at the suppressionhearing, the People were not obligated, contrary to defendant's contention, to establishthat the officer or agency imparting the information possessed reasonable suspicion to act(see People v Shabazz, 289 AD2d 1059, 1059-1060 [4th Dept 2001], certdenied 537 US 1165 [2003], affd 99 NY2d 634 [2003], rearg denied100 NY2d 556 [2003]).
Defendant further contends that the court erred in admitting in evidence at trial therecording of the 911 call, in which the caller reported defendant's initial display of theweapon and then excitedly informed the 911 operator that defendant had returned andwas again displaying a weapon as the caller spoke. Defendant raised a hearsay objection,and the court concluded that the recording was admissible for nonhearsay purposesbecause it was not admitted for the truth of the matter asserted. Assuming, arguendo, thatthe court erred in admitting the recording under that rationale (see e.g. People v Almonte, 160AD3d 594, 594 [1st Dept 2018], affd 33 NY3d 1083 [2019]; People vBuie, 201 AD2d 156, 158-160 [4th Dept 1994], affd 86 NY2d 501 [1995]),we conclude that any error in admitting the recording was harmless (see People v Spencer, 96AD3d 1552, 1553 [4th Dept 2012], lv denied 19 NY3d 1029 [2012],denied reconsideration 20 NY3d 989 [2012]). Defendant further contends thatthe court erred in failing to give a limiting instruction regarding the evidence, despite itspromise to do so. That contention is not preserved for our review (see People v Hymes, 174AD3d 1295, 1299 [4th Dept 2019], affd 34 NY3d 1178 [2020]; People v Cartagena, 170 AD3d451, 451 [1st Dept 2019], lv denied 33 NY3d 1029 [2019]), and we declineto exercise our power to review it as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]).
The sentence is not unduly harsh or severe. Present—Smith, J.P., Peradotto,Bannister, Montour and Ogden, JJ.