Opinion
No. KA 06-01906.
March 14, 2008.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), rendered June 7, 2006. The judgment convicted defendant, upon a nonjury verdict, of criminal possession of a weapon in the third degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MARY GOOD OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (RAYMOND C. HERMAN OF COUNSEL), FOR RESPONDENT.
Present: Hurlbutt, J.P., Smith, Centra, Green and Gorski, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, following a nonjury trial, of criminal possession of a weapon in the third degree (Penal Law § 265.02 [former (4)]). Contrary to the contention of defendant, Supreme Court properly refused to suppress the gun that he threw behind a couch as the police pursued him into the residence of an acquaintance. "[A] `defendant's flight may be considered in conjunction with other attendant circumstances' in determining whether reasonable suspicion justifying a seizure exists" ( People v Pines, 99 NY2d 525, 527, quoting People v Martinez, 80 NY2d 444, 447-448). Here, a police officer's observation of a gun in defendant's waistband in conjunction with defendant's flight provided "reasonable suspicion that defendant may have been engaged in criminal activity justifying police pursuit" ( People v Cruz, 14 AD3d 730, 732, lv denied 4 NY3d 852). Defendant's abandonment of the weapon during the ensuing police pursuit provided the police with probable cause to arrest defendant ( see People v Wilson, 5 AD3d 408, 409, lv denied 2 NY3d 809).
We reject defendant's further contention that the verdict is against the weight of the evidence ( see generally People v Bleakley, 69 NY2d 490, 495). Finally, we reject the contention of defendant that the court erred in denying his pro se motion to set aside the verdict pursuant to CPL 330.30 without conducting a hearing. In seeking that relief, defendant contended that the People failed to produce Brady material and that he was denied the right to effective assistance of counsel based on defense counsel's failure to seek discovery of that alleged Brady material. "[o]nly a claim of error that is properly preserved for appellate review will provide a basis to modify the verdict" ( People v Thomas, 242 AD2d 281, lv denied 90 NY2d 1014), and defendant's contention with respect to the People's failure to produce Brady material is not preserved for our review ( see People v Thomas, 8 AD3d 303, lv denied 3 NY3d 682). Defendant's contention with respect to ineffective assistance of counsel involves matters outside the record on appeal, and thus the proper procedural vehicle for raising that claim is by way of a motion pursuant to CPL 440.10 ( see People v Johnson, 24 AD3d 1257, lv denied 6 NY3d 814).