Opinion
910 KA 18–01888
11-08-2019
The PEOPLE of the State of New York, Respondent, v. Jermaine HABEEB, Defendant–Appellant. (Appeal No. 1.)
RIORDAN & SCALIONE, AMHERST (SCOTT F. RIORDAN OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
RIORDAN & SCALIONE, AMHERST (SCOTT F. RIORDAN OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him, upon a jury verdict, of criminal possession of a weapon in the second degree ( Penal Law § 265.03[3] ), arising from a traffic stop during which defendant, a passenger in the vehicle, pulled a .40 caliber handgun from his waistband and threw it across the street. In appeal No. 2, defendant appeals from a judgment convicting him, upon the same jury verdict, of, inter alia, criminal possession of a weapon in the second degree ( § 265.03[3] ), arising from a separate incident in which police officers observed him throwing an object, which was subsequently identified as a 9 millimeter semi-automatic pistol, over a fence.
We reject defendant's contention in appeal No. 1 that Supreme Court erred in refusing to suppress the .40 caliber handgun seized following the stop of the vehicle in which defendant was a passenger. The officers' observation that the vehicle's license plate lamp was unlit, an equipment violation, provided a lawful basis to stop the vehicle (see People v. Gibbs, 167 A.D.3d 1580, 1580, 90 N.Y.S.3d 464 [4th Dept. 2018], lv denied 33 N.Y.3d 976, 101 N.Y.S.3d 269, 124 N.E.3d 758 [2019] ), and the officers were authorized to detain defendant for the purpose of issuing a traffic summons based on defendant's failure to wear a seatbelt (see People v. Simms, 25 A.D.3d 425, 425, 808 N.Y.S.2d 64 [1st Dept. 2006], lv. denied 6 N.Y.3d 838, 814 N.Y.S.2d 86, 847 N.E.2d 383 [2006] ). Defendant's act of discarding the handgun during the lawful traffic stop was an independent act that involved a calculated risk and was not prompted by any unlawful police conduct (see People v. Isidro, 6 A.D.3d 1234, 1235, 776 N.Y.S.2d 669 [4th Dept. 2004], lv denied 3 N.Y.3d 659, 782 N.Y.S.2d 701, 816 N.E.2d 574 [2004] ), and defendant thus had no right to object to the seizure of the handgun by the police (see People v. Brown, 148 A.D.3d 1562, 1564, 48 N.Y.S.3d 865 [4th Dept. 2017], lv denied 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 [2017] ).
We reject defendant's further contention in appeal No. 1 that the verdict convicting him of criminal possession of a weapon in the second degree is inconsistent because he was acquitted of criminal possession of a controlled substance in the fifth degree ( Penal Law § 220.06[5] ) and criminal possession of a controlled substance in the seventh degree (§ 220.03). Defendant's acquittal of the drug possession counts did not necessarily negate an essential element of the weapon possession count (see People v. Goodfriend, 64 N.Y.2d 695, 697, 485 N.Y.S.2d 519, 474 N.E.2d 1187 [1984] ; People v. Strauss, 147 A.D.3d 1426, 1426–1427, 46 N.Y.S.3d 376 [4th Dept. 2017], lv denied 29 N.Y.3d 1087, 64 N.Y.S.3d 177, 86 N.E.3d 264 [2017], reconsideration denied 30 N.Y.3d 953, 67 N.Y.S.3d 137, 89 N.E.3d 527 [2017] ), and thus the verdict, "when viewed in light of the elements of each crime as charged to the jury," is not inherently inconsistent ( People v. Tucker, 55 N.Y.2d 1, 4, 447 N.Y.S.2d 132, 431 N.E.2d 617 [1981], rearg. denied 55 N.Y.2d 1039, 449 N.Y.S.2d 1030, 434 N.E.2d 1081 [1982] ; see People v. Putt, 303 A.D.2d 992, 992, 757 N.Y.S.2d 661 [4th Dept. 2003] ). Moreover, viewing the evidence in light of the elements of the crime of criminal possession of a weapon in the second degree as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's contention that the verdict in appeal No. 1 is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Two police officers testified that they observed defendant remove from his waistband a black semi-automatic handgun and then throw it across the street. The loaded .40 caliber handgun was collected by the police and test-fired by a firearms examiner, who subsequently determined that the handgun was operable, and a DNA expert testified that defendant's DNA profile matched a DNA profile obtained from the handgun. In contrast, the evidence of defendant's possession of a controlled substance was entirely circumstantial, and the jury could have reasonably concluded from the evidence that the officer's discovery of a vial of cocaine on the ground near defendant's person was insufficient to establish that he knowingly and unlawfully possessed the cocaine (see People v. Delancy, 81 A.D.3d 1446, 1446, 916 N.Y.S.2d 724 [4th Dept. 2011], lv denied 17 N.Y.3d 794, 929 N.Y.S.2d 102, 952 N.E.2d 1097 [2011] ).
We reject defendant's contention in appeal No. 2 that the court erred in refusing to suppress the pistol that defendant allegedly discarded while being pursued by the police. An officer approached defendant on the basis of information provided by a person present at the scene of a fight to which several officers were responding, and the People established the reliability of the unnamed citizen informant by establishing that the officer obtained the information from her during a face-to-face encounter (see People v. Rios, 11 A.D.3d 641, 642, 782 N.Y.S.2d 863 [2d Dept. 2004], lv denied 4 N.Y.3d 747, 790 N.Y.S.2d 660, 824 N.E.2d 61 [2004] ). That information did not constitute an anonymous tip (see People v. McCutcheon, 125 A.D.2d 603, 603–604, 509 N.Y.S.2d 429 [2d Dept. 1986], lv denied 70 N.Y.2d 651, 518 N.Y.S.2d 1044, 512 N.E.2d 570 [1987] ), and the officer was justified in acting on the information provided by the citizen in approaching defendant (see People v. Dixon, 289 A.D.2d 937, 937–938, 734 N.Y.S.2d 761 [4th Dept. 2001], lv denied 98 N.Y.2d 637, 744 N.Y.S.2d 765, 771 N.E.2d 838 [2002] ). Furthermore, "a defendant's flight in response to an approach by the police ... may give rise to reasonable suspicion" when accompanied by additional information suggestive of criminal activity ( People v. Sierra, 83 N.Y.2d 928, 929, 615 N.Y.S.2d 310, 638 N.E.2d 955 [1994] ). Here, defendant's actions in retreating from the officer after she addressed him and in jumping over a fence elevated the officer's level of suspicion and provided the predicate necessary to justify the pursuit of defendant (see People v. Hillard, 79 A.D.3d 1757, 1758, 917 N.Y.S.2d 778 [4th Dept. 2010], lv denied 17 N.Y.3d 796, 929 N.Y.S.2d 104, 952 N.E.2d 1099 [2011] ; see generally People v. Holmes, 81 N.Y.2d 1056, 1058, 601 N.Y.S.2d 459, 619 N.E.2d 396 [1993] ), and defendant's abandonment of the pistol in the course of the pursuit provided probable cause for his arrest (see People v. Daniels, 147 A.D.3d 1392, 1393, 46 N.Y.S.3d 358 [4th Dept. 2017], lv denied 29 N.Y.3d 1077, 64 N.Y.S.3d 167, 86 N.E.3d 254 [2017] ). The recovery of the disassembled components of the abandoned pistol was lawful inasmuch as the officer's pursuit of defendant was lawful (see People v. Gayden, 126 A.D.3d 1518, 1519, 4 N.Y.S.3d 806 [4th Dept. 2015], affd 28 N.Y.3d 1035, 42 N.Y.S.3d 667, 65 N.E.3d 696 [2016] ).
Defendant further contends in appeal No. 2 that the evidence is legally insufficient to establish the operability of the pistol and that the verdict is against the weight of the evidence. We reject those contentions. Viewing the evidence in the light most favorable to the People (see People v. Conway, 6 N.Y.3d 869, 872, 816 N.Y.S.2d 731, 849 N.E.2d 954 [2006] ), we conclude that the evidence is legally sufficient to establish that the pistol was both loaded (see Penal Law §§ 265.00[15] ; 265.03[3] ) and operable (see People v. Cruz, 272 A.D.2d 922, 922, 709 N.Y.S.2d 717 [4th Dept. 2000], affd 96 N.Y.2d 857, 730 N.Y.S.2d 29, 754 N.E.2d 1112 [2001] ; People v. Longshore, 86 N.Y.2d 851, 852, 633 N.Y.S.2d 475, 657 N.E.2d 496 [1995] ). Although the pistol became disassembled when it struck the ground and the magazine and ammunition scattered upon impact, it is well settled that a weapon rendered temporarily inoperable, by disassembly or otherwise, may constitute an operable firearm (see People v. Solomon , 78 A.D.3d 1426, 1428, 911 N.Y.S.2d 514 [3d Dept. 2010], lv denied 16 N.Y.3d 899, 926 N.Y.S.2d 35, 949 N.E.2d 983 [2011] ; People v. Velez, 278 A.D.2d 53, 53, 718 N.Y.S.2d 25 [1st Dept. 2000], lv denied 96 N.Y.2d 808, 726 N.Y.S.2d 386, 750 N.E.2d 88 [2001] ; People v. Lugo, 161 A.D.2d 122, 123, 554 N.Y.S.2d 849 [1st Dept. 1990], lv. denied 76 N.Y.2d 860, 560 N.Y.S.2d 1000, 561 N.E.2d 900 [1990] ). Viewing the evidence in light of the elements of the crime of criminal possession of a weapon in the second degree as charged to the jury (see Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we further conclude that the verdict in appeal No. 2 is not against the weight of the evidence with respect to that count (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). In addition to the testimony of the eyewitnesses who either observed defendant throw a black object over the fence or observed the pistol fly over the fence and land near their feet, the People presented evidence that a DNA sample taken from the pistol was consistent with defendant's DNA profile, which supports an inference that defendant had physically possessed the pistol (see People v. Ward, 104 A.D.3d 1323, 1324, 960 N.Y.S.2d 839 [4th Dept. 2013], lv denied 21 N.Y.3d 1011, 971 N.Y.S.2d 263, 993 N.E.2d 1286 [2013] ; People v. Robinson, 72 A.D.3d 1277, 1278, 898 N.Y.S.2d 365 [3d Dept. 2010], lv denied 15 N.Y.3d 809, 908 N.Y.S.2d 169, 934 N.E.2d 903 [2010] ).