Opinion
07-06-2016
The PEOPLE, etc., respondent, v. Azeem PATRON, appellant.
Lynn W.L. Fahey, New York, N.Y. (Samuel Brown of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Rhea A. Grob of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Samuel Brown of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Rhea A. Grob of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and BETSY BARROS, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Garnett, J.), rendered May 30, 2013, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Gary, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the judgment is affirmed.
The defendant's contention that the Supreme Court improvidently exercised its discretion in permitting the People to resubmit the case to a second grand jury panel after the first grand jury could not muster 12 votes either to indict the defendant or dismiss the charges against him is unpreserved for appellate review (see CPL 470.05[2] ; People v. Brown, 81 N.Y.2d 798, 595 N.Y.S.2d 370, 611 N.E.2d 271 ). In any event, the contention is without merit, since the first grand jury's inability to either indict or dismiss was a legitimate reason for the new submission, and “the underlying circumstances do not provide clear indication that the first grand jury's decisional authority was being subverted” (People v. Credle, 17 N.Y.3d 556, 562, 934 N.Y.S.2d 77, 958 N.E.2d 111 ; see People v. Pryor, 5 A.D.3d 222, 772 N.Y.S.2d 823 ).
The Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress the gun recovered from his person during a traffic stop. The police officer's testimony at the suppression hearing established that the police had authority to stop the livery cab in which the defendant was a passenger based on the driver's failure to signal while changing lanes (see People v. Davis, 103 A.D.3d 810, 811, 962 N.Y.S.2d 174 ; People v. Grant, 83 A.D.3d 862, 863, 921 N.Y.S.2d 285 ). Upon making the valid traffic stop, the officer had discretion to order the defendant to exit the vehicle (see People v. Robinson, 74 N.Y.2d 773, 774, 545 N.Y.S.2d 90, 543 N.E.2d 733 ). Further, given the defendant's behavior while still seated in the vehicle, which included the defendant making a “dipping motion” by leaning over to his right, and then, upon exiting the car, trying to avoid showing the officer the right side of his body, the officer had a sufficient and reasonable basis to conduct a pat down search of the defendant's waistband and to remove the gun found therein (see CPL 140.50 [3 ]; People v. Grant, 83 A.D.3d at 863, 921 N.Y.S.2d 285 ).
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), 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[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), 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, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ). Contrary to the defendant's contention, the testimony of the People's witnesses was not incredible (see People v. Barber, 133 A.D.3d 868, 22 N.Y.S.3d 63 ; People v. Marcus, 112 A.D.3d 652, 975 N.Y.S.2d 771 ).
The defendant's challenge to various remarks made by the prosecutor during summation is unpreserved for appellate review, as the defendant failed to object to any of the challenged summation remarks (see CPL 470.05[2] ; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 ; People v. Yusuf, 119 A.D.3d 619, 987 N.Y.S.2d 899 ; People v. Jeudy, 115 A.D.3d 982, 983, 982 N.Y.S.2d 773 ). In any event, the remarks were either fair comment on the evidence and the reasonable inferences to be drawn therefrom, or responsive to defense counsel's summation (see People v. Bridges, 114 A.D.3d 960, 980 N.Y.S.2d 820 ; People v. Wingfield, 113 A.D.3d 798, 799, 978 N.Y.S.2d 872 ; People v. Hawley, 112 A.D.3d 968, 969, 977 N.Y.S.2d 391 ).
The defendant's remaining contention is without merit.