People v. Habeeb

• Citation: 177 A.D.3d 1271,112 N.Y.S.3d 386
• Decision Date: 08 November 2019
• Docket Number: 910,KA 18–01888
• Parties: The PEOPLE of the State of New York, Respondent, v. Jermaine HABEEB, Defendant–Appellant. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

177 A.D.3d 1271
112 N.Y.S.3d 386

The PEOPLE of the State of New York, Respondent,
v.
Jermaine HABEEB, Defendant–Appellant.

(Appeal No. 1.)

910
KA 18–01888

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: November 8, 2019

RIORDAN & SCALIONE, AMHERST (SCOTT F. RIORDAN OF COUNSEL), FOR DEFENDANT–APPELLANT.

JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.

PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, CURRAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

177 A.D.3d 1271

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 a jury verdict, of criminal possession of a weapon in the second degree ( Penal Law § 265.03[3] ), arising from a traffic stop during which defendant, a passenger in the vehicle, pulled a .40 caliber handgun from his waistband and threw it across the street. In appeal No. 2, defendant appeals from a judgment convicting him, upon the same jury verdict, of, inter alia, criminal possession of a weapon in the second degree ( § 265.03[3] ), arising from a separate incident in which police officers observed him throwing an object, which was subsequently identified as a 9 millimeter semi-automatic pistol, over a fence.

We reject defendant's contention in appeal No. 1 that Supreme Court erred in refusing to suppress the .40 caliber handgun seized following the stop of the vehicle in which defendant was a passenger. The officers' observation that the vehicle's license plate lamp was unlit, an equipment violation, provided a lawful basis to stop the vehicle (see People v. Gibbs, 167 A.D.3d 1580, 1580, 90 N.Y.S.3d 464 [4th Dept. 2018], lv denied 33 N.Y.3d 976, 101 N.Y.S.3d 269, 124 N.E.3d 758 [2019] ), and the officers were authorized to detain defendant for the purpose of issuing a traffic summons based on defendant's failure to wear a seatbelt (see People v. Simms, 25 A.D.3d 425, 425, 808 N.Y.S.2d 64 [1st Dept. 2006], lv. denied 6 N.Y.3d 838, 814 N.Y.S.2d 86, 847 N.E.2d 383 [2006] ). Defendant's act of discarding the handgun during the lawful traffic stop was an independent act that involved a calculated risk and was not prompted by any unlawful police conduct (see People v. Isidro, 6 A.D.3d 1234, 1235, 776 N.Y.S.2d 669 [4th Dept. 2004], lv denied

177 A.D.3d 1272

3 N.Y.3d 659, 782 N.Y.S.2d 701, 816 N.E.2d 574 [2004] ), and defendant thus had no right to object to the seizure of the handgun by the police

112 N.Y.S.3d 389

(see People v. Brown, 148 A.D.3d 1562, 1564, 48 N.Y.S.3d 865 [4th Dept. 2017], lv denied 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 [2017] ).

We reject defendant's further contention in appeal No. 1 that the verdict convicting him of criminal possession of a weapon in the second degree is inconsistent because he was acquitted of criminal possession of a controlled substance in the fifth degree ( Penal Law § 220.06[5] ) and criminal possession of a controlled substance in the seventh degree (§ 220.03). Defendant's acquittal of the drug possession counts did not necessarily negate an essential element of the weapon possession count (see People v. Goodfriend, 64 N.Y.2d 695, 697, 485 N.Y.S.2d 519, 474 N.E.2d 1187 [1984] ; People v. Strauss, 147 A.D.3d 1426, 1426–1427, 46 N.Y.S.3d 376 [4th Dept. 2017], lv denied 29 N.Y.3d 1087, 64 N.Y.S.3d 177, 86 N.E.3d 264 [2017], reconsideration denied 30 N.Y.3d 953, 67 N.Y.S.3d 137, 89 N.E.3d 527 [2017] ), and thus the verdict, "when viewed in light of the elements of each crime as charged to the jury," is not inherently inconsistent ( People v. Tucker, 55 N.Y.2d 1, 4, 447 N.Y.S.2d 132, 431 N.E.2d 617 [1981], rearg. denied 55 N.Y.2d 1039, 449 N.Y.S.2d 1030, 434 N.E.2d 1081 [1982] ; see People v. Putt, 303 A.D.2d 992, 992, 757 N.Y.S.2d 661 [4th Dept. 2003] ). Moreover, viewing the evidence in light of the elements of the crime of criminal possession of a weapon in the second degree as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's contention that the verdict in appeal No. 1 is 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 [1987] ). Two police officers testified that they observed defendant remove from his waistband a black semi-automatic handgun and then throw it across the street. The loaded .40 caliber handgun was collected by the police and test-fired by a firearms examiner, who subsequently determined that the handgun was operable, and a DNA expert testified that defendant's DNA profile matched a DNA profile obtained from the handgun. In contrast, the evidence of defendant's possession of a controlled substance was entirely circumstantial, and the jury could have reasonably concluded from the evidence that the officer's discovery of a vial of cocaine on the ground near defendant's person was insufficient to establish that he knowingly and unlawfully possessed the cocaine (see People v. Delancy, 81 A.D.3d 1446, 1446, 916 N.Y.S.2d 724 [4th Dept. 2011], lv denied 17 N.Y.3d 794, 929 N.Y.S.2d 102, 952 N.E.2d 1097 [2011] ).

We reject defendant's contention in appeal No. 2 that the court erred in refusing to suppress the pistol that defendant allegedly discarded while being pursued by the police. An officer approached defendant on the basis of information provided by a person present at the scene of a fight to which several officers

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