Opinion
KA 01-01369.
November 21, 2003.
Appeal from a judgment of Supreme Court, Erie County (Buscaglia, J.), entered April 4, 2001, convicting defendant after a jury trial of, inter alia, criminal possession of a weapon in the third degree (two counts).
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant-Appellant.
Frank J. Clark, District Attorney, Buffalo (Paul J. Williams, III, of Counsel), for Plaintiff-Respondent.
Before: Present: Pigott, Jr., P.J., Pine, Hurlbutt, Kehoe, and Hayes, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts of criminal possession of a weapon in the third degree (Penal Law § 265.02, [4]) and one count of criminal possession of stolen property in the fourth degree (§ 165.45 [4]). All three counts arose out of the seizure by police of a handgun from the floor of a vehicle in which defendant was a passenger. The handgun had been stolen during an armed robbery four days earlier.
Contrary to the contention of defendant, there was no violation of his right to be free from unreasonable search and seizure. The vehicle stop was justified by the traffic violations observed by the officers ( see People v. Sobotker, 43 N.Y.2d 559, 563-564; People v. Ingle, 36 N.Y.2d 413, 414-415; cf. People v. Washburn, 309 A.D.2d 1270 [Oct. 2, 2003]). Additionally, upon lawfully stopping the vehicle, the officers were entitled, without more incriminating information, to order the driver and defendant out of the vehicle ( see People v. Mundo, 99 N.Y.2d 55, 58; People v. Carvey, 89 N.Y.2d 707, 710). The officers then lawfully observed the gun in plain view on the floor of the vehicle and lawfully seized it from that location ( see People v. Robinson, 74 N.Y.2d 773, 775, cert denied 493 U.S. 966). In any event, the officers had additional knowledge of incriminating circumstances justifying their conduct in ordering the suspects out of the vehicle at gunpoint, frisking them, and briefly detaining them. The vehicle in which the suspects were traveling generally matched that described in a "pickuporder" issued several days earlier, i.e., for a four-door Cadillac with tinted windows, which might contain a weapon. Further, when the officers sought to pull over the vehicle, the driver did not stop but instead drove on for several blocks, committing another traffic violation in the process and finally coming to a stop at a dead-end street. The officers at that point had a reasonable suspicion that criminal activity was afoot and a basis to fear for their own safety, thus supporting the reasonableness of the forcible stop, frisk, and temporary detention of the suspects ( see People v. Torres, 74 N.Y.2d 224, 226-227; People v. Chestnut, 51 N.Y.2d 14, 21-22, cert denied 449 U.S. 1018; People v. Brown, 190 A.D.2d 1003, 1004, lv denied 81 N.Y.2d 968; see also People v. Martinez, 289 A.D.2d 94, lv denied 97 N.Y.2d 757; People v. Thomas, 275 A.D.2d 276, 278-279, lv denied 95 N.Y.2d 939).
The evidence is legally sufficient to support the conviction and the verdict is not against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495). Supreme Court did not err in denying defendant's untimely request for a missing witness instruction ( see People v. Gonzalez, 68 N.Y.2d 424, 427-428; People v. Coleman, 306 A.D.2d 941, 942; People v. McKinney, 302 A.D.2d 993, 995, lv denied 100 N.Y.2d 584). Defendant was not deprived of a fair trial by prosecutorial misconduct on summation ( see generally People v. Galloway, 54 N.Y.2d 396, 401). Nor was defendant deprived of effective assistance of counsel ( see generally People v. Henry, 95 N.Y.2d 563, 565; People v. Baldi, 54 N.Y.2d 137, 147). Among other things, trial counsel succeeded in obtaining defendant's acquittal on the most serious charges. Finally, the sentence is not unduly harsh or severe.