People v. Jennings, 2010-00821

• Decision Date: 24 June 2015
• Docket Number: 2010-00821
• Parties: The PEOPLE, etc., respondent, v. Clyde JENNINGS, appellant.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 1103

12 N.Y.S.3d 275

2015 N.Y. Slip Op. 05497

The PEOPLE, etc., respondent

v.Clyde JENNINGS, appellant.

2010-00821

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

June 24, 2015.

Robert C. Mitchell, Riverhead, N.Y. (Adrienne Wallace of counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Guy Arcidiacono of counsel), for respondent.

PETER B. SKELOS, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.

Opinion

Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs, J.), rendered December 10, 2009, convicting him of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and resisting arrest, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, without a hearing (Efman, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence. By decision and order of this Court dated October 2, 2013, the matter was remitted to the County Court, Suffolk County, for a hearing and a new determination thereafter of that branch of the defendant's omnibus motion which was to suppress physical evidence, and the appeal was held in abeyance in the interim (see People v. Jennings, 110 A.D.3d 738, 972 N.Y.S.2d 104 ). The County Court, Suffolk County (Efman, J.), has now filed its report.

ORDERED that the judgment is affirmed.

The defendant was arrested after he threw a gun away while being pursued on foot by a detective. The County Court denied, without a hearing, that branch of the defendant's omnibus motion which was to suppress the gun. After a jury trial, the defendant was convicted of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and resisting arrest. The defendant appeals from the judgment of conviction. By decision and order dated October 2, 2013, this Court held the appeal in abeyance and remitted the matter to the County Court for a hearing and a new determination thereafter of that branch of the defendant's omnibus motion which was to suppress the gun. Upon remittal, the County Court held a suppression hearing and, thereafter, denied that branch of the motion.

At the suppression hearing, Suffolk County Police Department Detective Christopher Talt testified that, on the evening of December 20, 2007, he and another detective were in plainclothes, in an unmarked Ford Explorer, traveling westbound on Saint Johns Street in Central Islip. As they stopped at a stop sign at the intersection of Saint Johns Street and Cordello Avenue, they observed a parked late-model Chevy Malibu to their right on Cordello Avenue, facing north. Detective Talt testified that he observed the four male occupants of the Malibu exit the vehicle, walk around it, and re-enter the vehicle, and that, almost immediately thereafter, three of the occupants re-exited the vehicle, while one remained in the front passenger seat. At that point, the male who had been in the driver's seat opened the hood of the Malibu. Detective Talt and his partner pulled up behind the Malibu, exited their vehicle, and identified themselves as police. The defendant turned his back to the detectives and began walking away, at a quickening pace, in the northbound direction. Detective Talt gave chase, and the defendant, as he ran, threw a gun toward the side of the road. Detective Talt recovered the gun and, shortly thereafter, apprehended the defendant nearby on Saint Johns Street.

Upon remittal, the County Court properly denied that branch of the defendant's omnibus motion which was...