Argued-March 15, 2018
Randall D. Unger, Bayside, NY, for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M.
Castellano, Johnnette Traill, Merri Turk Lasky, and John F.
McGoldrick of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JEFFREY A. COHEN, FRANCESCA E.
CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
by the defendant from a judgment of the Supreme Court, Queens
County (Leslie Leach, J.), rendered July 14, 2016, convicting
him of criminal possession of a weapon in the second 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's omnibus motion which
was to suppress certain physical evidence.
that the judgment is affirmed.
August 22, 2012, at approximately 8:50 p.m., a police officer
observed a red Camaro traveling recklessly through an
intersection in Queens. Approximately 30 to 40 seconds later,
the police officer received a police radio transmission
concerning a shooting that had occurred in the direction from
which the Camaro was traveling. At approximately 9:20 p.m.,
the police stopped the defendant, who was driving a red
Camaro without its headlights on, 20 to 25 blocks away from
the scene of the shooting. The officer who effectuated the
stop drew his gun, and ordered the defendant, who had already
exited the car, not to move. The defendant was then
handcuffed and 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
walking down the street, approximately 1% blocks away. The
police canvassed the block indicated by the civilian, and
recovered from various areas on the block, in close proximity
to each other, among other things, a loaded rifle and two
handguns stacked on top of each other, several types of
ammunition, and a rewards card issued in the defendant's
name which was located outside of a brown wallet. After the
defendant was transported to the police station, he was
searched incident to his arrest and a bullet was recovered
from one of his pants pockets.
to trial, the defendant moved, inter alia, to suppress
physical evidence. Following a hearing, the Supreme Court,
among other things, denied that branch of the defendant's
omnibus motion which was to suppress certain physical
trial, there was testimony that at approximately 9:15 p.m. on
August 22, 2012, a witness observed a black male in his
backyard. A police officer testified that, from that
witness's backyard, he looked over the fence and observed
a rifle and two handguns in the neighboring backyard. The
People presented testimony that all of the firearms and the
ammunition tested were operable. DNA evidence revealed that
the defendant's brother was a major contributor to DNA
found on the handguns and that the defendant was more than
twice as likely than not to be a contributor to DNA found on
the rifle. After trial, the defendant was convicted of
several counts charged in the indictment.
defendant appeals from the judgment of conviction, which
brings up for review the denial of that branch of his omnibus
motion which was to suppress the bullet the police recovered
from his pocket and the ammunition recovered from the red
evaluating police conduct, the court must determine whether
the actions taken were justified at every stage of the
encounter (see People v De Bour, 40 N.Y.2d 210, 223;
People v Finlayson, 76 A.D.2d 670, 678). A forcible
stop and seizure by the police requires reasonable suspicion
of criminal activity (see People v Spencer, 84
N.Y.2d 749, 753; People v Sobotker, 43 N.Y.2d 559,
563). ''Reasonable suspicion'' has been
defined as "the quantum of knowledge sufficient to
induce an ordinarily prudent and cautious man under the
circumstances to believe that criminal activity is at
hand" (People v Sobotker, 43 N.Y.2d at 564).
"To achieve a level of reasonability, the police
officer's suspicion must be 'based upon specific and
articulable facts which, taken together with rational
inferences from those facts, reasonably warrant [the]
intrusion'" (People v Riggio, 202 A.D.2d
609, 610, quoting Terry v Ohio, 392 U.S. 1, 21;
see People v Hicks, 68 N.Y.2d 234, 238).
"Resolution of the issue of whether [a police officer]
possessed reasonable suspicion requires evaluation of the
totality of the circumstances" (People v Loper,
115 A.D.3d 875, 879).
to the People's contention, the defendant's
suppression claim is preserved for appellate review (see CPL
470.05; People v Miles, 58 A.D.3d 872).
Nevertheless, the suppression record demonstrates that the
stop and subsequent police actions were based on reasonable
suspicion, as evaluated on a totality of the circumstances
(see People v Chestnut, 51 N.Y.2d 14, 21; People
v Bowers, 148 A.D.3d 1042, 1043; People v
Loper, 115 A.D.3d at 879; People v Finlayson,
76 A.D.2d at 679), which escalated to probable cause for an
arrest (see People v Finlayson, 76 A.D.2d at 681).
The defendant was driving the red Camaro without its
headlights on when he was stopped within close temporal and
geographic proximity to the scene of a shooting. The car
substantially matched the description of a Camaro that had
been seen driving recklessly seconds prior to a police radio
transmission regarding a shooting in the area and, again,
minutes later, speeding past the same area (see People v
Jogie, 51 A.D.3d 1038, 1039; People v Heyward,
303 A.D.2d 522, 523; People v Devorce, 293 A.D.2d
550). Once stopped, the defendant exited the Camaro on his
own. A police officer "may take appropriate
self-protective measures when he lawfully confronts an
individual and reasonably believes him to be armed or
otherwise dangerous'' (People v Finlayson,
76 A.D.2d at 678). Moreover, the cartridges recovered from
the Camaro, which were in plain view (see People v
Hernandez, 125 A.D.2d 492, 493; People v
Greene, 104 A.D.2d 601, 606607), provided additional
indicia of criminality (cf. People v Riddick, 110
A.D.2d 787), and the bullet recovered from the
defendant's pants pocket was found incident to his lawful
arrest (see People v Jones, 13 A.D.3d 393, 393).
Therefore, that branch of the defendant's omnibus motion
which was to suppress those items was properly denied.
defendant's contention that the evidence was legally
insufficient to support his convictions is not preserved for
appellate review (see People v Finger, 95 N.Y.2d
894, 895; People v Stewart,11 A.D.3d 568, 568;
People v Cannon,300 A.D.2d 407, 408). In any event,
viewing the evidence in the light most favorable to the
prosecution (see People v Contes,60 N.Y.2d 620,
621), we find that it was legally sufficient to establish the
defendant's guilt beyond a reasonable doubt. Moreover, in
fulfilling our responsibility to conduct an independent
review of the weight of the evidence (see CPL 470.15), we
nevertheless accord great deference to the jury's
opportunity to view the witnesses, hear the testimony, and
observe demeanor (see People v Mateo,2 N.Y.3d 383,