Opinion
532 KA 16–00921
05-04-2018
The PEOPLE of the State of New York, Respondent, v. Tarell SMITH, also known as Shellito Donmore, Defendant–appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JULIE BENDER FISKE OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JULIE BENDER FISKE OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), rendered March 9, 2016. The judgment convicted defendant, upon a nonjury verdict, of criminal possession of a weapon in the second degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of criminal possession of a weapon in the second degree ( Penal Law § 265.03[3] ). Contrary to defendant's contention, County Court properly refused to suppress the weapon that was secured by the police from the street where defendant threw it following the stop of the vehicle in which he was a passenger at a traffic safety checkpoint. We conclude that, although the court properly determined that the stop was unlawful, it further properly determined that suppression of the weapon was not warranted inasmuch as defendant's act of pulling a weapon from his waistband and pointing it at another individual " ‘was an independent act, not the direct result of, and therefore not tainted by, the illegal [stop]’ " ( People v. Fussello, 265 A.D.2d 838, 838, 695 N.Y.S.2d 639 [4th Dept. 1999], lv denied 94 N.Y.2d 823, 702 N.Y.S.2d 593, 724 N.E.2d 385 [1999] ; see People v. Mercado, 229 A.D.2d 550, 551, 645 N.Y.S.2d 835 [2d Dept. 1996], lv denied 88 N.Y.2d 1070, 651 N.Y.S.2d 414, 674 N.E.2d 344 [1996] ).
Contrary to the assertion of the People on appeal, we conclude that defendant preserved for our review his contentions with respect to the legal insufficiency of the evidence by making an appropriate motion for a trial order of dismissal (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). We nevertheless reject defendant's contentions on the merits. The fact that no prosecution witness testified that the weapon thrown from the vehicle was the same weapon secured by the police does not render the evidence legally insufficient. "The only reasonable inference that could be drawn from the chain of evidence in this ... incident was that the loaded, operable pistol recovered by the police immediately after the crime was the same weapon that was used by [defendant]" ( People v. Torres, 32 A.D.3d 796, 796, 821 N.Y.S.2d 206 [1st Dept. 2006], lv denied 8 N.Y.3d 850, 830 N.Y.S.2d 709, 862 N.E.2d 801 [2007] ). Similarly, we conclude that minor variations in how prosecution witnesses described the weapon and a clerical error in the date on a laboratory form do not render the evidence legally insufficient (see People v. Grant, 194 A.D.2d 348, 351, 599 N.Y.S.2d 16 [1st Dept. 1993], lv denied 82 N.Y.2d 754, 603 N.Y.S.2d 996, 624 N.E.2d 182 [1993] ; see also 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] ; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
Finally, viewing the evidence in light of the elements of the crime in this nonjury trial (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we further conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).