Opinion
2019-14605 Ind. 486/17
05-11-2022
The People of the State of New York, respondent, v. Shawn Baker, appellant.
Joseph Z. Amsel, New York, NY, for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, William H. Branigan, and Matthew C. Harnisch of counsel), for respondent.
Joseph Z. Amsel, New York, NY, for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, William H. Branigan, and Matthew C. Harnisch of counsel), for respondent.
BETSY BARROS, J.P., JOSEPH J. MALTESE, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (John F. Zoll, J.), rendered December 11, 2019, convicting him of criminal possession of a weapon in the second degree (three counts) and unlawful possession of pistol ammunition, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Robert Charles Kohm, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence, and the denial (Peter F. Vallone, Jr., J.), without a hearing, of the defendant's separate motion to controvert a search warrant and suppress physical evidence seized in the execution thereof.
ORDERED that the judgment is affirmed.
Pursuant to People v De Bour (40 N.Y.2d 210), there is "a graduated four-level test for evaluating the propriety of police encounters when a police officer is acting in a law enforcement capacity" (People v Benbow, 193 A.D.3d 869, 871 [internal quotation marks omitted]). "The first level permits a police officer to request information from an individual, and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality" (id. at 871 [internal quotation marks omitted]). "The second level, known as the common-law right of inquiry, requires a founded suspicion that criminal activity is afoot, and permits a somewhat greater intrusion" (id. [internal quotation marks omitted]). "Based upon a founded suspicion that criminal activity is afoot, the subject may be asked to produce identification, may be asked whether he [or she] has weapons, and may be asked to remove his [or her] hands from his [or her] pockets" (Matter of Shakir J., 119 A.D.3d 792, 794-795 [citation omitted]; see People v Muhammed, 196 A.D.3d 1151, 1152-1153; Matter of Shariff H., 123 A.D.3d 714, 717; People v Hill, 72 A.D.3d 702, 704-705). "The third level permits a police officer to forcibly stop and detain an individual" (People v Benbow, 193 A.D.3d at 871 [internal quotation marks omitted]). "Such a detention, however, is not permitted unless there is a reasonable suspicion that an individual is committing, has committed, or is about to commit a crime" (id. [internal quotation marks omitted]). "A corollary of the statutory right to temporarily detain for questioning is the authority to frisk if the officer reasonably suspects that he [or she] is in danger of physical injury by virtue of the detainee being armed" (People v De Bour, 40 N.Y.2d at 223). "The fourth level authorizes an arrest based on probable cause to believe that a person has committed a crime" (People v Benbow, 193 A.D.3d at 871 [internal quotation marks omitted]).
Here, the Supreme Court correctly denied that branch of the defendant's omnibus motion which was to suppress physical evidence. Contrary to the defendant's contention, under the circumstances, the officer who stopped him had "a founded suspicion that criminal activity [was] afoot," supporting a level-two inquiry at the outset of the encounter (id. [internal quotation marks omitted]; see People v King, 164 A.D.3d 915, 915; People v Abdul-Mateen, 126 A.D.3d 986, 987-988). As part of this level-two inquiry, the officer was permitted to ask the defendant to take his hands out of his pockets (see People v Abdul-Mateen, 126 A.D.3d at 988; Matter of Shariff H., 123 A.D.3d at 717; Matter of Shakir J., 119 A.D.3d at 794-795; People v Hill, 72 A.D.3d at 704-705). The defendant's failure to comply with this request, combined with him "shoulder[ing] through" the officer, escalated the encounter such that the officer was justified in grabbing the defendant's pocket, where the defendant's hand remained, for self-protection (see People v Muhammed, 196 A.D.3d at 1152-1153; People v King, 164 A.D.3d at 916; People v Abdul-Mateen, 126 A.D.3d at 988). At that point, the officer felt the handle of a firearm in the defendant's pocket, which provided him with reasonable suspicion for a level-three stop (see People v Abdul-Mateen, 126 A.D.3d at 988). Given that the defendant had already used physical force against the officer and the officer felt a gun in the defendant's pocket, the officer was entitled to frisk the defendant (see People v De Bour, 40 N.Y.2d at 223; People v Abdul-Mateen, 126 A.D.3d at 988). Accordingly, the evidence at the suppression hearing showed that the encounter began as a proper level-two inquiry, that the defendant escalated the encounter into a level-three stop, and that the officer recovered the gun as part of a justifiable frisk of the defendant during the level-three stop.
Contrary to the defendant's contention, the Supreme Court did not err in denying his motion to controvert a search warrant and suppress physical evidence seized in the execution thereof. The defendant failed in both his initial motion papers and in his motion to renew to "make the requisite substantial preliminary showing that the warrant[ ] [was] based upon affidavits containing statements that were knowingly or intentionally false or made with reckless disregard for the truth" (People v Watson, 163 A.D.3d 855, 857; see Franks v Delaware, 438 U.S. 154, 155-156, 171; People v Lassiter, 151 A.D.3d 885, 886; People v Moshier, 110 A.D.3d 832, 833). The defendant's contention that certain trial evidence called into question the truthfulness of the affidavit submitted in support of the application for the search warrant is unpreserved for appellate review (see CPL 470.05[2]; People v Lassiter, 151 A.D.3d at 886) and, in any event, without merit. The defendant's contention regarding CPL 710.60(2)(a) is not properly before this Court, as the defendant raises it for the first time in his reply brief (see People v Shaw, 126 A.D.3d 1016, 1017).
In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 N.Y.3d 342, 348), 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, 410; People v Bleakley, 69 N.Y.2d 490, 495). Upon our review of the record here, we are satisfied that the verdict of guilt on the count of criminal possession of a weapon in the second degree with respect to a.40 caliber pistol was not against the weight of the evidence. Contrary to the defendant's contention, the weight of the credible evidence supported a finding that he constructively possessed this firearm, as it was found in the back of the vehicle that he stated "was his" and to which he possessed the keys when he was arrested, and the People presented video evidence of the defendant in the back of the vehicle on the day of his arrest (see People v Danielson, 9 N.Y.3d at 348; People v Amos, 198 A.D.3d 797, 800; People v Branch, 186 A.D.3d 1705, 1706; People v Williams, 170 A.D.3d 1046, 1048). That there was evidence that the codefendants also had access to or possessed this firearm was of no moment, as "possession, even if joint, is still possession" (People v Williams, 170 A.D.3d at 1048 [internal quotation marks omitted]). The defendant's contention regarding his acquittal of a separate count involving the same firearm is without merit, as that count included as an element that "the defendant had the intent to use [the firearm] unlawfully against another." The evidence supported a finding that the defendant constructively possessed the firearm but did not have an intent to use it unlawfully against another.
"Upon motion of the defendant," "the court must declare a mistrial... when there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, which is prejudicial to the defendant and deprives him [or her] of a fair trial" (CPL 280.10[1]). "The decision to declare a mistrial rests within the sound discretion of the trial court, which is in the best position to determine if this drastic remedy is truly necessary to protect the defendant's right to a fair trial" (People v Diaz, 189 A.D.3d 1063, 1066). Here, the Supreme Court did not improvidently exercise its discretion in denying the defendant's motion for a mistrial, as the court struck the improper testimony and issued a prompt curative instruction to the jury regarding the testimony (see id. at 1066; People v Ellis, 166 A.D.3d 993, 997, affd 32 N.Y.3d 1092; People v Keizer, 157 A.D.3d 903, 904-905). Additionally, the court accepted the prosecutor's representation that he had not intentionally elicited the improper testimony, and there is no basis in the record to disturb this finding (see People v Diaz, 189 A.D.3d at 1066; People v Tullock, 148 A.D.3d 1061, 1061-1062; People v Bryant, 280 A.D.2d 403, 403). Finally, the defendant waived his argument that the curative instruction compounded any prejudice to him by emphasizing the improper testimony, as he agreed that the court should give a curative instruction and specifically asked that the court use "the strongest language and tone that [the court] can come up with" (see People v Armstrong, 138 A.D.3d 877, 879).
BARROS, J.P., MALTESE, WOOTEN and ZAYAS, JJ., concur.