Opinion
698 KA 18-01618
10-01-2021
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. LAMARCUS L. DEAN, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (WILLIAM CLAUSS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (WILLIAM CLAUSS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, CURRAN, AND DEJOSEPH, JJ.
Appeal from a judgment of the Supreme Court, Monroe County (Thomas E. Moran, J.), rendered March 10, 2017. The judgment convicted defendant, upon a jury 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 jury verdict, of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). We affirm. All references herein to "the officer" are to the police officer that testified second at the suppression hearing.
Supreme Court properly refused to suppress the subject gun. Contrary to defendant's contention, the officer's direct observation of the outline of a handgun tucked into defendant's waistband was itself sufficient, standing alone, to establish the reasonable suspicion necessary for the level three forcible stop in this case (see People v Vernon, 164 A.D.3d 1657, 1657-1658 [4th Dept 2018], lv denied 32 N.Y.3d 1179 [2019]; People v Jarrett, 157 A.D.3d 534, 534 [1st Dept 2018], lv denied 31 N.Y.3d 1014 [2018]; People v Carver, 147 A.D.3d 415, 415 [1st Dept 2017], lv denied 29 N.Y.3d 1030 [2017]; see generally People v Moore, 6 N.Y.3d 496, 498-499 [2006]; People v Thornton, 238 A.D.2d 33, 35 [1st Dept 1998]). There is no basis for rejecting the court's determination to credit the officer's testimony at the suppression hearing (see Vernon, 164 A.D.3d at 1658). Moreover, and notwithstanding defendant's contrary assertion, the fact that the police did not know whether the subject gun was properly licensed at the inception of the stop merely underscores the distinction between reasonable suspicion and proof beyond a reasonable doubt (see United States v Goss, 537 Fed.Appx 276, 280 n 5 [4th Cir 2013]; see generally United States v Trogdon, 789 F.3d 907, 913 [8th Cir 2015], cert denied 577 U.S. 946 [2015]; Spear v Sowders, 71 F.3d 626, 631 [6th Cir 1995]).
We reject defendant's further contention that the court erred in denying his request for a circumstantial evidence instruction. A circumstantial evidence instruction is properly denied "where there is both direct and circumstantial evidence of the defendant's guilt" (People v Hardy, 26 N.Y.3d 245, 249 [2015]), and "[d]irect evidence... include[s]... eyewitness testimony attesting to a defendant's participation in the crime" (People v James, 147 A.D.3d 1211, 1212 [3d Dept 2017], lv denied 29 N.Y.3d 1128 [2017]). The officer's eyewitness testimony at trial attesting to the handgun in defendant's waistband thus constituted direct evidence of guilt, and it follows that defendant was not entitled to a circumstantial evidence instruction (see People v Myers, 194 A.D.3d 431, 431-432 [1st Dept 2021], lv denied 37 N.Y.3d 967 [2021]; People v Battle, 160 A.D.2d 948, 948-949 [2d Dept 1990], lv denied 76 N.Y.2d 784 [1990]). Contrary to defendant's assertions, the purported unpersuasiveness of the officer's trial testimony could not "change the character of th[at] evidence from direct to circumstantial" (Hardy, 26 N.Y.3d at 251; see Battle, 160 A.D.2d at 949), and the fact that such testimony did not singlehandedly prove each and every element of the crime charged is irrelevant to defendant's entitlement to a circumstantial evidence instruction (see Hardy, 26 N.Y.3d at 251).
Defendant failed to preserve his due process contention regarding the trial justice's remarks to and about a prospective juror during voir dire (see People v Williams, 164 A.D.3d 842, 844-845 [2d Dept 2018], lv denied 32 N.Y.3d 1116 [2018]; People v McDuffie, 270 A.D.2d 362, 362 [2d Dept 2000]). Contrary to defendant's assertion, his argument on that point does not implicate a mode of proceedings error (see People v Prokop, 155 A.D.3d 975, 976 [2d Dept 2017], lv denied 30 N.Y.3d 1118 [2018]; People v Mason, 132 A.D.3d 777, 779 [2d Dept 2015], appeal dismissed 29 N.Y.3d 972 [2017]; see also People v Brown, 7 N.Y.3d 880, 881 [2006]). We nevertheless urge the trial justice to exercise greater restraint in addressing prospective jurors in the future.
Contrary to defendant's further contention, defense counsel's comments at sentencing "never strayed beyond a factual explanation of his efforts on his client's behalf" and thus did not create an actual conflict of interest (People v Washington, 25 N.Y.3d 1091, 1095 [2015]; see People v Nelson, 7 N.Y.3d 883, 884 [2006]; People v Avent, 178 A.D.3d 1403, 1405 [4th Dept 2019], lv denied 35 N.Y.3d 940 [2020]). Indeed, it is well established that "counsel does not create an actual conflict merely by outlining his efforts on his client's behalf... and defending his performance" (Washington, 25 N.Y.3d at 1095 [internal quotation marks omitted]).
Finally, the sentence is not unduly harsh or severe.