People v. Hunter
| Docket Number | 110950 |
| Decision Date | 03 August 2023 |
| Citation | 2023 NY Slip Op 04158 |
| Parties | The People of the State of New York, Respondent, v. Noah Hunter, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Calendar Date: June 8, 2023
Law Offices of Elmer Robert Keach, III, PC, Albany (Elmer Robert Keach III of counsel), for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Pritzker, Reynolds Fitzgerald and McShan, JJ.
Egan Jr., J.
Appeal from a judgment of the County Court of Schenectady County (Mark J. Caruso, J.), rendered October 12, 2017, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree.
Prior to going out on patrol on July 31, 2015, two City of Schenectady Police Department officers were advised of a "be on the lookout," or BOLO, bulletin for Brandon Greggs, an individual with an active warrant for his arrest who was also a person of interest with regard to possible retaliation for a recent homicide in the city. The officers were on patrol around 4:00 p.m. that day when they spotted Greggs and two other men, including defendant, standing on the front porch of a home on Cutler Street. The officers circled the block and drove by again to find that Greggs and two other men were sitting in a silver or gray Ford Taurus parked in front of the home. The officers circled the block again so that they could pull up behind the vehicle and approach its occupants more safely; by the time they returned, the vehicle was gone.
One of the officers radioed that a person with an active warrant was a passenger in a silver or gray Ford Taurus and provided a license plate number for the vehicle that had one incorrect digit. Approximately a minute and a half later, a police sergeant who was driving in the area was at a nearby intersection when he spotted a gray Ford Taurus with a "very similar" plate number, and he activated his vehicle's emergency lights to effectuate a stop. As he attempted to make the stop, defendant bolted out of the rear passenger door of the Ford Taurus and ran toward an alleyway. The sergeant observed defendant try to pull a Stoeger Industries.380 caliber semi-automatic pistol from his sweatpants pocket, fumble and drop that gun after getting it caught on his sweatpants, and then continue running. The sergeant initially gave chase, but soon returned to secure the handgun on the ground and found that the Ford Taurus and its other occupants were gone.
Defendant was eventually apprehended and, in May 2016, was charged in an indictment with two counts of criminal possession of a weapon in the second degree and one count of criminal possession of a weapon in the third degree. Following an unsuccessful motion by defendant to suppress the handgun recovered from the scene as the product of an illegal stop the matter proceeded to a jury trial in January 2017. During deliberations, the jury advised that it was having difficulty reaching a verdict, and County Court (Sypniewski, J.) administered an Allen charge. The jury then advised that it had reached a verdict on the second count of the indictment but was unable to reach a verdict on the remaining two counts. County Court accepted a partial verdict in which the jury acquitted defendant of one count of criminal possession of a weapon in the second degree and re-administered an Allen charge, urging the jury to continue its deliberations on the remaining two counts. Thereafter, the jury sent a note reporting that it remained deadlocked on those two counts and that "[n]o more time to deliberate [would] change the vote." At that point with the parties' consent, County Court declared a mistrial.
A second trial on the two counts got underway in June 2017. During jury selection, defendant challenged the People's use of peremptory strikes to remove two prospective jurors one of whom was Black and one of whom was purportedly Hispanic, on Batson grounds (see Batson v Kentucky, 476 U.S. 79 [1986]). County Court (Caruso, J.) rejected those challenges and, at the conclusion of the trial, defendant was convicted of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. County Court thereafter declined to grant defendant youthful offender status and sentenced him to 10 years in prison to be followed by five years of postrelease supervision for the second-degree weapon possession conviction, as well as a lesser concurrent term of imprisonment on the third-degree weapon possession conviction. Defendant appeals, and we affirm.
At the outset, we reject defendant's efforts to question the quality of the proof presented against him at the first trial on double jeopardy grounds. It is well established that, "if the defendant requests or consents to a mistrial, double jeopardy will not preclude a retrial... unless the defendant can demonstrate prosecutorial or judicial misconduct intended to provoke a mistrial" (People v Ellis, 182 A.D.3d 791, 792 [3d Dept 2020], lv denied 35 N.Y.3d 1026 [2020]; see People v Casalino, 204 A.D.3d 1078, 1079 [3d Dept 2022], lv denied 38 N.Y.3d 1070 [2022]; People v Green, 190 A.D.3d 1094, 1097 [3d Dept 2021], lv denied 36 N.Y.3d 1097 [2021]). After the jury at the first trial advised that it could not reach a verdict on two of the counts against defendant and saw no prospect of doing so, defense counsel "concur[red]" with the proposal of County Court (Sypniewski, J.) to discharge the jury following an on-the-record discussion. Defendant then, after an off-the-record discussion, did not dispute the representation of County Court that "both sides [had] consented" to doing so. As defendant consented to the mistrial, and he makes no effort to argue that the mistrial was provoked by prosecutorial or judicial misconduct, double jeopardy posed no bar to the second trial on the remaining two counts against him. As a consequence, defendant is "foreclosed from questioning the legal sufficiency of the proof presented at the first trial regarding those counts or arguing that the lack thereof functioned as 'an acquittal for purposes of double jeopardy'" (People v Green, 190 A.D.3d at 1097 n 1, quoting People v Biggs, 1 N.Y.3d 225, 229 [2003]; see People v Haggray, 164 A.D.3d 1522, 1523 [3d Dept 2018], lv denied 32 N.Y.3d 1111 [2018]; People v Kappen, 142 A.D.3d 1106, 1107 [2d Dept 2016], lv denied 28 N.Y.3d 1185 [2017 ]).
Next, County Court properly declined to suppress the handgun defendant abandoned upon the ground that it was a product of an illegal traffic stop. "Automobile stops are lawful only when based on probable cause that a driver has committed a traffic violation; when based on a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime; or, when conducted pursuant to nonarbitrary, nondiscriminatory, uniform highway traffic procedures" (People v Hinshaw, 35 N.Y.3d 427, 430 [2020] [internal quotation marks and citations omitted]; see People v Balkman, 35 N.Y.3d 556, 559 [2020]; People v Spencer, 84 N.Y.2d 749, 753 [1995]). The suppression hearing included testimony from, among others, the two officers who initially spotted Greggs and the sergeant who stopped the Ford Taurus. The two officers on patrol testified as to how they were aware that a BOLO bulletin had been issued regarding Greggs and that he had an active warrant for his arrest, as well as how they spotted him and then saw him sitting in the Ford Taurus. The officers further described how, after they returned to find the Ford Taurus gone, they radioed out the description of the vehicle and the fact that a passenger in the vehicle had an active warrant for his arrest. The sergeant testified as to how he heard that radio report and how, when he was a few blocks away a minute or two later, he saw a Ford Taurus similar to the description provided and stopped it. Defendant then got out of the vehicle, pulled the handgun and fumbled it to the ground before running away. Deferring to the implicit assessment of both the judicial hearing officer who conducted the hearing and County Court that the foregoing testimony was credible - and noting that the sergeant was "entitled to act on the strength of a radio bulletin... from a fellow officer or department and to assume its reliability" (People v Lypka, 36 N.Y.2d 210, 213 [1975]; accord People v Cuevas, 140 A.D.3d 1313, 1314 [3d Dept 2016]) - we are satisfied that the People established that the sergeant had a reasonable suspicion "that an occupant of [the Ford Taurus] had committed a crime to justify the" stop (People v Houghtalen, 89 A.D.3d 1163, 1165 [3d Dept 2011]). It follows that defendant's motion to suppress the handgun that he abandoned in the aftermath of that stop was properly denied.
We are unpersuaded by defendant's further contention that County Court (Caruso, J.) erred in rejecting his Batson challenges to the People's use of peremptory strikes to potential jurors at his second trial. A Batson challenge requires the trial court to engage in a three-step process. "At step one, the movant must make a prima facie showing that the peremptory strike was used to discriminate; at step two, if that showing is made, the burden shifts to the opposing party to articulate a non-discriminatory reason for striking the juror; and finally, at step three, the trial court must determine, based on the arguments presented by the parties, whether the proffered reason for the peremptory strike was pretextual and whether the movant has shown purposeful discrimination" (People v Bridgeforth, 28 N.Y.3d 567, 571 [2016] [citation omitted]; see People v Hecker, 15 N.Y.3d 625, 634-635 [2010]...
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