Opinion
1024 KA 19-00316
02-10-2023
The PEOPLE of the State of New York, Respondent, v. Devine D. JACQUE-CREWS, Defendant-Appellant.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (CLEA WEISS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (CLEA WEISS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, BANNISTER, MONTOUR, AND OGDEN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from 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 second degree ( Penal Law § 265.03 [1] [b] ; [3]) and one count of criminal possession of a weapon in the third degree (§ 265.02 [3]). The charges arose from an incident in which defendant displayed a handgun during an altercation with several other people, left the scene in a black Mercedes, returned and displayed a handgun again, and then left the scene again in the same vehicle. He fled from that vehicle after it was stopped by the police a short time later, and a firearm was recovered from a backpack that Rochester police officers located on the path defendant took when he ran. We affirm.
Initially, defendant contends that all three crimes are facially unconstitutional under the Second Amendment of the United States Constitution in light of the United States Supreme Court's decision in New York State Rifle & Pistol Assn., Inc. v. Bruen , ––– U.S. ––––, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022). As defendant correctly concedes, his challenge to the constitutionality of the statutes is not preserved for our review inasmuch as he failed to raise any such challenge during the proceedings in Supreme Court (see People v. Reese , 206 A.D.3d 1461, 1462-1462, 170 N.Y.S.3d 375 [3d Dept. 2022] ; People v. Gerow , 85 A.D.3d 1319, 1320, 925 N.Y.S.2d 243 [3d Dept. 2011] ; cf. People v. Hughes , 22 N.Y.3d 44, 48-49, 978 N.Y.S.2d 97, 1 N.E.3d 298 [2013] ; see generally People v. Reinard , 134 A.D.3d 1407, 1409, 22 N.Y.S.3d 270 [4th Dept. 2015], lv denied 27 N.Y.3d 1074, 38 N.Y.S.3d 844, 60 N.E.3d 1210 [2016], cert denied ––– U.S. ––––, 137 S.Ct. 392, 196 L.Ed.2d 308 [2016] ). Contrary to defendant's contention, we conclude that his constitutional challenge is not exempt from the preservation rule (see People v. Thomas , 50 N.Y.2d 467, 472-473, 429 N.Y.S.2d 584, 407 N.E.2d 430 [1980] ; cf. People v. Patterson , 39 N.Y.2d 288, 296, 383 N.Y.S.2d 573, 347 N.E.2d 898 [1976], affd 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 [1977] ; see generally People v. Baumann & Sons Buses, Inc. , 6 N.Y.3d 404, 408, 813 N.Y.S.2d 27, 846 N.E.2d 457 [2006], rearg denied 7 N.Y.3d 742, 819 N.Y.S.2d 876, 853 N.E.2d 247 [2006] ).
Defendant's contention that the court erred in refusing to suppress the handgun that the police recovered from the backpack that he abandoned during his flight from the police is "based on a ground not raised before the suppression court and thus is unpreserved for our review" ( People v. Poole , 55 A.D.3d 1354, 1355, 864 N.Y.S.2d 359 [4th Dept. 2008], lv denied 11 N.Y.3d 929, 874 N.Y.S.2d 14, 902 N.E.2d 448 [2009]; see People v. Zuke , 87 A.D.3d 1290, 1291, 929 N.Y.S.2d 910 [4th Dept. 2011], lv denied 18 N.Y.3d 887, 939 N.Y.S.2d 757, 963 N.E.2d 134 [2012] ; cf. People v. Walls , 37 N.Y.3d 987, 989, 152 N.Y.S.3d 112, 173 N.E.3d 1146 [2021] ). Although defendant contended at the suppression hearing that the police lacked reasonable suspicion to stop the vehicle in which he was riding, he did not challenge the reliability of the citizen who called 911 to report the incident, nor did he challenge the arresting officer's reliance on the ensuing radio dispatch. "Under the fellow officer rule, [a] police officer is entitled to act on the strength of a radio bulletin ... from a fellow officer or department and to assume its reliability ... Under those circumstances, the agency or officer transmitting the information presumptively possesses the requisite [reasonable suspicion] ... However, where ... defendant challenges the reliability of the information transmitted to the arresting officers, the presumption of [reasonable suspicion] disappears and it becomes incumbent upon the People to establish that the officer or agency imparting the information ... in fact possessed [reasonable suspicion] to act" ( People v. Searight , 162 A.D.3d 1633, 1634-1635, 79 N.Y.S.3d 445 [4th Dept. 2018] [internal quotation marks omitted]; see People v. Landy , 59 N.Y.2d 369, 375, 465 N.Y.S.2d 857, 452 N.E.2d 1185 [1983] ; see also People v. Fenner , 61 N.Y.2d 971, 973, 475 N.Y.S.2d 276, 463 N.E.2d 617 [1984] ). Inasmuch as defendant did not challenge the reliability of the radio transmissions at the suppression hearing, the People were not obligated, contrary to defendant's contention, to establish that the officer or agency imparting the information possessed reasonable suspicion to act (see People v. Shabazz , 289 A.D.2d 1059, 1059-1060, 735 N.Y.S.2d 691 [4th Dept. 2001], cert denied 537 U.S. 1165, 123 S.Ct. 976, 154 L.Ed.2d 903 [2003], affd 99 N.Y.2d 634, 760 N.Y.S.2d 717, 790 N.E.2d 1146 [2003], rearg denied 100 N.Y.2d 556, 763 N.Y.S.2d 814, 795 N.E.2d 40 [2003] ). Defendant further contends that the court erred in admitting in evidence at trial the recording of the 911 call, in which the caller reported defendant's initial display of the weapon and then excitedly informed the 911 operator that defendant had returned and was again displaying a weapon as the caller spoke. Defendant raised a hearsay objection, and the court concluded that the recording was admissible for nonhearsay purposes because it was not admitted for the truth of the matter asserted. Assuming, arguendo, that the court erred in admitting the recording under that rationale (see e.g. People v. Almonte , 160 A.D.3d 594, 594, 76 N.Y.S.3d 125 [1st Dept. 2018], affd 33 N.Y.3d 1083, 106 N.Y.S.3d 277, 130 N.E.3d 873 [2019] ; People v. Buie , 201 A.D.2d 156, 158-160, 615 N.Y.S.2d 794 [4th Dept. 1994], affd 86 N.Y.2d 501, 634 N.Y.S.2d 415, 658 N.E.2d 192 [1995] ), we conclude that any error in admitting the recording was harmless (see People v. Spencer , 96 A.D.3d 1552, 1553, 946 N.Y.S.2d 753 [4th Dept. 2012], lv denied 19 N.Y.3d 1029, 953 N.Y.S.2d 562, 978 N.E.2d 114 [2012], reconsideration denied 20 N.Y.3d 989, 958 N.Y.S.2d 704, 982 N.E.2d 624 [2012] ). Defendant further contends that the court erred in failing to give a limiting instruction regarding the evidence, despite its promise to do so. That contention is not preserved for our review (see People v. Hymes , 174 A.D.3d 1295, 1299, 106 N.Y.S.3d 439 [4th Dept. 2019], affd 34 N.Y.3d 1178, 122 N.Y.S.3d 587, 145 N.E.3d 224 [2020] ; People v. Cartagena , 170 A.D.3d 451, 451, 95 N.Y.S.3d 194 [1st Dept. 2019], lv denied 33 N.Y.3d 1029, 102 N.Y.S.3d 512, 126 N.E.3d 162 [2019] ), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
The sentence is not unduly harsh or severe.