Opinion
638 KA 16-01589
07-17-2020
The PEOPLE of the State of New York, Respondent, v. Seymour S. ATKINSON, Defendant-Appellant. (Appeal No. 1.)
MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, BANNISTER, AND DEJOSEPH, 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 his plea of guilty of assault in the second degree ( Penal Law § 120.05 [7] ). In appeal No. 2, defendant appeals from a judgment convicting him upon a nonjury verdict of criminal possession of a weapon in the second degree (§ 265.03 [3] ). We affirm in each appeal.
Defendant contends in appeal No. 2 that County Court erred in refusing to suppress a pistol seized after he was pursued by police officers. We reject that contention. Based upon defendant's physical and temporal proximity to the scene of the reported shooting incident and the fact that defendant's physical characteristics and clothing matched the description of one of the individuals involved in the incident, we conclude that the officers had a founded suspicion that criminal activity was afoot, thereby justifying their initial common-law inquiry of defendant (see People v. Gayden , 126 A.D.3d 1518, 1518, 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] ; People v. McKinley , 101 A.D.3d 1747, 1748, 957 N.Y.S.2d 790 [4th Dept. 2012], lv denied 21 N.Y.3d 1017, 971 N.Y.S.2d 500, 994 N.E.2d 396 [2013] ; see generally People v. De Bour , 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ). Contrary to defendant's contention, the court properly determined that the officers thereafter had the requisite reasonable suspicion to pursue and detain him based on the combination of the abovementioned specific circumstances indicating that defendant may have been engaged in criminal activity and his flight in response to the approach by the officers (see People v. Parker , 32 N.Y.3d 49, 56-57, 84 N.Y.S.3d 838, 109 N.E.3d 1138 [2018] ; Gayden , 126 A.D.3d at 1518, 4 N.Y.S.3d 806 ; People v. Nance , 148 A.D.3d 1566, 1567, 52 N.Y.S.3d 589 [4th Dept. 2017], lv denied 29 N.Y.3d 1084, 64 N.Y.S.3d 173, 86 N.E.3d 260 [2017] ).
We also reject defendant's contention in appeal No. 2 that the court erred in granting the People's request at the charge conference that the court consider accessorial liability. "An indictment charging a defendant as a principal is not unlawfully amended by the admission of proof and instruction to the [factfinder] that a defendant is additionally charged with acting-in-concert to commit the same crime, nor does it impermissibly broaden a defendant's basis of liability, as there is no legal distinction between liability as a principal or criminal culpability as an accomplice" ( People v. Rivera , 84 N.Y.2d 766, 769, 622 N.Y.S.2d 671, 646 N.E.2d 1098 [1995] ; see People v. Duncan , 46 N.Y.2d 74, 79-80, 412 N.Y.S.2d 833, 385 N.E.2d 572 [1978], rearg denied 46 N.Y.2d 940, 415 N.Y.S.2d 1027, 388 N.E.2d 372 [1979], cert denied 442 U.S. 910, 99 S.Ct. 2823, 61 L.Ed.2d 275 [1979], rearg dismissed 56 N.Y.2d 646, 450 N.Y.S.2d 1026, 436 N.E.2d 196 [1982] ; People v. Gigante , 212 A.D.2d 1049, 1049, 624 N.Y.S.2d 1006 [4th Dept. 1995], lv denied 85 N.Y.2d 909, 627 N.Y.S.2d 332, 650 N.E.2d 1334 [1995] ). Here, by determining that it would consider accessorial liability, the court "did not introduce any new theory of culpability into the case that was inconsistent with that in the indictment, and thus [defendant's] indictment as a principal provided him with fair notice of the charge against him" ( People v. Young , 55 A.D.3d 1234, 1235, 864 N.Y.S.2d 584 [4th Dept. 2008], lv denied 11 N.Y.3d 901, 873 N.Y.S.2d 277, 901 N.E.2d 771 [2008] ; see Rivera , 84 N.Y.2d at 770-771, 622 N.Y.S.2d 671, 646 N.E.2d 1098 ). Contrary to defendant's assertion, we conclude that the evidence presented at trial supports a charge based on accessorial liability, and thus the court did not err in granting the People's request to consider that theory (see People v. Guitierrez , 74 A.D.3d 1834, 1834, 902 N.Y.S.2d 493 [4th Dept. 2010], lv denied 15 N.Y.3d 852, 909 N.Y.S.2d 29, 935 N.E.2d 821 [2010] ; People v. Usera , 233 A.D.2d 270, 270, 650 N.Y.S.2d 137 [1st Dept. 1996], lv denied 89 N.Y.2d 989, 656 N.Y.S.2d 748, 678 N.E.2d 1364 [1997] ).
Defendant further contends in appeal No. 2 that the verdict is against the weight of the evidence. That contention lacks merit. Even assuming, arguendo, that a different verdict would not have been unreasonable, we conclude that, viewing the evidence in light of the elements of the crime in this nonjury trial (see People v. Danielson , 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), it cannot be said that the court failed to give the evidence the weight it should be accorded (see People v. Jackson , 162 A.D.3d 1567, 1567, 78 N.Y.S.3d 574 [4th Dept. 2018], lv denied 32 N.Y.3d 938, 84 N.Y.S.3d 865, 109 N.E.3d 1165 [2018] ; see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
Finally, by failing to move to withdraw the plea or vacate the judgment of conviction, defendant failed to preserve for our review his challenges to the voluntariness of the plea in appeal No. 1 (see People v. McCracken , 138 A.D.3d 1147, 1147, 28 N.Y.S.3d 890 [2d Dept. 2016], lv denied 27 N.Y.3d 1135, 39 N.Y.S.3d 117, 61 N.E.3d 516 [2016] ; see generally People v. Delorbe , 35 N.Y.3d 112, 125 N.Y.S.3d 327, 149 N.E.2d 20 [2020]). In any event, defendant's challenges are without merit inasmuch as the record establishes that the plea was knowingly, intelligently and voluntarily entered (see People v. Scott , 151 A.D.3d 1702, 1702, 57 N.Y.S.3d 289 [4th Dept. 2017], lv denied 29 N.Y.3d 1133, 64 N.Y.S.3d 683, 86 N.E.3d 575 [2017] ; McCracken , 138 A.D.3d at 1147, 28 N.Y.S.3d 890 ).