THE
LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE
OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN
J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF
COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND
TROUTMAN, JJ.
Appeal
from a judgment of the Erie County Court (Michael F.
Pietruszka, J.), rendered June 12, 2015. The judgment
convicted defendant, upon a nonjury verdict, of criminal
possession of a weapon in the second degree.
It is
hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him upon a
nonjury verdict of criminal possession of a weapon in the
second degree (Penal Law § 265.03 [3]). During the early
morning hours of May 18, 2013, an anonymous and as-yet
unidentified woman located at a specific address on Latour
Street in Buffalo called 911 and reported that defendant and
a woman were on the porch of the house located at that
address. Defendant reportedly had a shotgun and had been
kicking at the door. The caller identified defendant by name
and described him as a black man in a grey jacket. Two patrol
officers with the Buffalo Police Department responded to a
radio dispatch in their patrol vehicle and found defendant
walking down the sidewalk with a woman. Defendant was
subsequently arrested, and the police recovered a sawed-off
shotgun and a live shell in a grassy area along the sidewalk.
We
conclude that County Court properly denied defendant's
motion to suppress the physical evidence, as well as
defendant's postverdict motion pursuant to CPL 330.30
insofar as it challenged that ruling. "Police pursuit is
regarded as significantly impeding a person's freedom of
movement, thus requiring justification by reasonable
suspicion that a crime has been, is being, or is about to be
committed" (People v Foster, 302 A.D.2d 403,
404 [2d Dept 2003], lv denied 100 N.Y.2d 581');">100 N.Y.2d 581 [2003]
[internal quotation marks omitted]; see People v
Holmes, 81 N.Y.2d 1056, 1057 [1993]). "However, the
police may observe a defendant provided that they do so
unobtrusively and do not limit defendant's freedom of
movement by so doing' " (Foster, 302 A.D.2d
at 404, quoting People v Howard, 50 N.Y.2d 583, 592
[1980], cert denied 449 U.S. 1023');">449 U.S. 1023 [1980]; see
People v Rozier, 143 A.D.3d 1258, 1259 [4th Dept 2016]).
It is
well settled that "the propriety of the denial of a
suppression motion must be judged on the evidence before the
suppression court and that evidence subsequently admitted at
the trial cannot be used to support the suppression
court's denial" (People v Wilkins, 65
N.Y.2d 172, 180 [1985]). Here, the suppression court heard
the testimony of one of the two responding officers.
According to his testimony, the officers received a radio
dispatch concerning a black man in a grey jacket with a
shotgun and a woman on Latour Street. The officers were
nearby and responded to the call within approximately one
minute. When their patrol vehicle turned onto Latour Street,
the testifying officer observed a man matching
defendant's description walking down the sidewalk with a
woman. The officers then approached defendant in their patrol
vehicle while its overhead lights and siren were off.
Defendant looked over his shoulder toward the patrol vehicle,
walked to the grassy area, and made a shaking motion with his
arm as if to discard an object. Thereafter, the testifying
officer stopped the vehicle, exited it, drew his weapon, and
commanded defendant to stop. After defendant was arrested,
the testifying officer returned to the spot where he had
observed defendant shaking his arm, and found the sawed-off
shotgun in that exact spot. Another officer found the live
shell nearby at approximately the same time. Contrary to
defendant's contention, the foregoing testimony
establishes that the officers " were engaged merely in
observation, ' not pursuit" when defendant discarded
the shotgun and the live shell (Rozier, 143 A.D.3d
at 1259; see generally Howard, 50 N.Y.2d at 592).
Thus, those items were properly seized by the police inasmuch
as defendant did not discard them in response to unlawful
police conduct (see People v Feliciano, 140 A.D.3d
1776, 1777 [4th Dept 2016], lv denied 28 N.Y.3d 1027');">28 N.Y.3d 1027
[2016]; see also Rozier, 143 A.D.3d at 1259).
We
further conclude that the conviction is based on legally
sufficient evidence (see generally People v
Bleakley, 69 N.Y.2d 490, 495 [1987]). Additionally,
viewing the evidence in light of the elements of the crime in
this nonjury trial (see People v Danielson, 9 N.Y.3d
342, 349 [2007]), we conclude that the verdict is not against
the weight of the evidence (see generally Bleakley,
69 N.Y.2d at 495). Contrary to defendant's contention,
the testimony of the officer at the suppression hearing and
the testimony of another officer at the felony hearing were
consistent in all relevant respects with the trial testimony
of both of those officers.
Defendant
further contends that the court changed its ruling with
respect to the admissibility of the audio recording of the
911 call after the close of evidence, thereby prejudicing
him. We reject that contention. Upon the People's
pretrial application, the court ruled that the recording was
admissible under the excited utterance and present sense
impression exceptions to the rule prohibiting the admission
of hearsay statements. Although defendant also contended that
the recording constituted evidence of prior bad acts and
should be precluded under People v Molineux (168 NY
264 [1901]), the court rejected that contention. After
defendant made his postverdict motion pursuant to CPL 330.30,
the court informed the parties that it used the audio
recording of the 911 call only to complete the narrative of
events (see generally People v Gross, 26 N.Y.3d 689,
695 [2016]; People v Casado, 99 A.D.3d 1208, 1211
[4th Dept 2012], lv denied20 N.Y.3d 985');">20 N.Y.3d 985 [2012]).
The court stated that it did not use the audio recording as
evidence of the truth of the matters asserted therein or as
evidence of prior bad acts. Furthermore, in its written
decision and order denying the CPL 330.30 motion, the court
noted that "nothing was ...