Opinion
02-03-2017
The PEOPLE of the State of New York, Respondent, v. Marshall DANIELS, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for Defendant–Appellant. Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Julie Bender Fiske of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for Defendant–Appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Julie Bender Fiske of Counsel), for Respondent.
PRESENT: CARNI, J.P., LINDLEY, DeJOSEPH, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon a nonjury verdict of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3] ), defendant contends that County Court erred in refusing to suppress the gun that he discarded while he was being pursued by the police, as well as statements that he made to the police after his arrest. We reject that contention.
" ‘Great weight must be accorded to the determination of the suppression court because of its ability to observe and assess the credibility of the witnesses, and its findings should not be disturbed unless clearly erroneous or unsupported by the hearing evidence’ " (People v. Johnson, 138 A.D.3d 1454, 1454, 29 N.Y.S.3d 732, lv. denied 28 N.Y.3d 931, 40 N.Y.S.3d 360, 63 N.E.3d 80 ; see People v. Layou, 134 A.D.3d 1510, 1511, 23 N.Y.S.3d 517, lv. denied 27 N.Y.3d 1070, 38 N.Y.S.3d 841, 60 N.E.3d 1207, reconsideration denied 28 N.Y.3d 932, 40 N.Y.S.3d 360, 63 N.E.3d 80 ). At the suppression hearing, two police officers testified that they were traveling in a marked patrol vehicle on a warm summer day when they observed defendant walking down the street wearing black gloves. When the officer who was operating the vehicle slowed down, defendant turned and looked at the vehicle, and he then pulled out a gun and started to run. The officer stopped the vehicle, and the other officer exited the vehicle, pursued defendant on foot, and observed defendant throw the gun toward a house. Eventually, defendant was apprehended and a loaded gun was recovered from the lawn outside the house.
We conclude that the presence of a gun on defendant's person combined with his flight gave the police " ‘reasonable suspicion that defendant may have been engaged in criminal activity justifying police pursuit’ " (People v. Wilson, 49 A.D.3d 1224, 1224, 853 N.Y.S.2d 773, lv. denied 10 N.Y.3d 966, 863 N.Y.S.2d 150, 893 N.E.2d 456 ; see People v. Knight, 94 A.D.3d 1527, 1529, 943 N.Y.S.2d 355, lv. denied 19 N.Y.3d 998, 951 N.Y.S.2d 474, 975 N.E.2d 920 ). Defendant's abandonment of the gun during that pursuit provided the police with probable cause for defendant's arrest (see People v. Gayden, 126 A.D.3d 1518, 1518–1519, 4 N.Y.S.3d 806, affd. 28 N.Y.3d 1035, 42 N.Y.S.3d 667, 65 N.E.3d 696 ; Wilson, 49 A.D.3d at 1224–1225, 853 N.Y.S.2d 773 ), and their recovery of the abandoned gun was lawful inasmuch as the pursuit of defendant was lawful (see Gayden, 126 A.D.3d at 1519, 4 N.Y.S.3d 806 ). Furthermore, because the officers' conduct was lawful, the court properly refused to suppress as fruit of the poisonous tree the oral statements defendant made to the police after his arrest (see People v. Sims, 106 A.D.3d 1473, 1474, 964 N.Y.S.2d 380, appeal dismissed 22 N.Y.3d 992, 979 N.Y.S.2d 557, 2 N.E.3d 925 ).
We also reject defendant's contention that the conviction is not supported by legally sufficient evidence because of breaks in the chain of custody of the gun recovered from the lawn of the house. It is well settled that "breaks in the chain of custody affect only the weight to be given to that evidence" (People v. Craven, 48 A.D.3d 1183, 1185, 851 N.Y.S.2d 318, lv. denied 10 N.Y.3d 861, 860 N.Y.S.2d 487, 890 N.E.2d 250 ; see People v. Brown–Fort, 13 A.D.3d 731, 732, 786 N.Y.S.2d 233 ; see generally People v. Jefferson, 125 A.D.3d 1463, 1464, 3 N.Y.S.3d 547, lv. denied 25 N.Y.3d 990, 10 N.Y.S.3d 533, 32 N.E.3d 970 ). 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 ), we further conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.