People v. Mitchell

• Decision Date: 18 June 2015
• Docket Number: 105473
• Citation: 2015 N.Y. Slip Op. 05224,11 N.Y.S.3d 731,129 A.D.3d 1319
• Parties: The PEOPLE of the State of New York, Respondent, v. Rashan L. MITCHELL, Appellant.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 1319

11 N.Y.S.3d 731

2015 N.Y. Slip Op. 05224

The PEOPLE of the State of New York, Respondent

v.Rashan L. MITCHELL, Appellant.

105473

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

June 18, 2015.

Neal D. Futerfas, White Plains, for appellant.

D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Before: LAHTINEN, J.P., GARRY, EGAN JR. and ROSE, JJ.

Opinion

ROSE, J.

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered August 3, 2012, 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.

Defendant was charged with criminal possession of a weapon in both the second and third degrees after a loaded revolver was found lying beneath him on the ground when he was apprehended by police officers who had been surveilling an illegal drug transaction. He was convicted as charged and County Court sentenced him to an aggregate prison term of 15 years plus five years of postrelease supervision. He now appeals.

Initially, we cannot agree with defendant's contention that the statutes with which he was charged are unconstitutional (see Penal Law §§ 265.02[1] ; 265.03[3] ). As we have previously held, “Penal Law article 265 does not effect a complete ban on handguns and is, therefore, not a ‘severe restriction’ improperly infringing upon defendant's Second Amendment rights' ” (People v. Perkins, 62 A.D.3d 1160, 1161, 880 N.Y.S.2d 209 [2009], lvs. denied 13 N.Y.3d 748, 886 N.Y.S.2d 102, 914 N.E.2d 1020 [2009], quoting District of Columbia v. Heller, 554 U.S. 570, 629, 128 S.Ct. 2783, 171 L.Ed.2d 637 [2008] ; see People v. Hughes, 83 A.D.3d 960, 961–962, 921 N.Y.S.2d 300 [2011], affd. 22 N.Y.3d 44, 978 N.Y.S.2d 97, 1 N.E.3d 298 [2013] ).

Nor can we agree that defendant's motion to suppress the weapon as the result of an unlawful seizure should have been granted. Police detectives testified that, while they were performing radio and video surveillance of a confidential informant (hereinafter the CI) and an undercover officer attempting to purchase narcotics in an area known for its drug activity, they observed defendant acting as a lookout during the transaction. Defendant was dressed in a similar manner to his two male companions and, according to a detective, drug dealers often dress in a similar manner in order to make an accurate description more difficult. After the CI and the undercover officer confirmed that narcotics had been purchased from one of defendant's companions and provided a description, detectives approached defendant's group as they walked away and ordered them to stop and put up their hands. Although defendant initially complied, he then turned, reached his hand toward the back of his waist and started running. The police chased defendant until he fell while attempting to go over a fence. Seeing something black in defendant's hands, a detective jumped on top of him, pinning defendant to the ground with his hands beneath his body. After defendant was subdued, a loaded black revolver was found on the ground beneath him.

A reasonable suspicion that a particular individual was involved in a crime is required in order to justify a forcible detention (see People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ). Contrary to defendant's argument, he was not approached and ordered to stop merely because of his presence in a high-crime area. Rather, his manner of dress and conduct gave detectives reasonable suspicion to believe that he had been part of the drug transaction engaged in by the CI, thus justifying their initial approach and subsequent pursuit (see People v. Woods, 98 N.Y.2d 627, 628, 745 N.Y.S.2d 749, 772 N.E.2d 1107 [2002] ; People v. Sierra, 83 N.Y.2d 928, 930, 615 N.Y.S.2d 310, 638 N.E.2d 955 [1994] ; People v. Martinez, 80 N.Y.2d 444, 448, 591 N.Y.S.2d 823, 606 N.E.2d 951 [1992] ). According weight to County Court's ability to observe the witnesses and view the surveillance video (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ; People v. Morris, 105 A.D.3d 1075, 1077, 962 N.Y.S.2d 760 [2013], lv. denied 22 N.Y.3d 1042, 981 N.Y.S.2d 376, 4 N.E.3d 388 [2013] ), we perceive no basis to disturb the court's determination to deny the suppression motion (see People v. Ford, 110 A.D.3d 1368, 1371, 973 N.Y.S.2d 859 [2013], lv. denied 24 N.Y.3d 1043, 998 N.Y.S.2d 313, 23 N.E.3d 156 [2014] ; People v. Davenport, 92 A.D.3d 689, 690–691, 939 N.Y.S.2d 473 [2012], lv. dismissed 19 N.Y.3d 959, 950 N.Y.S.2d 111, 973 N.E.2d 209 [2012] ).

Although defendant also contends that the prosecutor's remarks during summation improperly shifted the burden of proof, defendant did not object to the summation and, thus, this issue is not preserved for our review (see People v. VanVorst, 118 A.D.3d 1035, 1037, 986 N.Y.S.2d 891 [2014] ; People v. Reichel, 110 A.D.3d 1356, 1364, 975 N.Y.S.2d 470 [2013], lv. denied 22 N.Y.3d 1090, 981 N.Y.S.2d 675, 4 N.E.3d 977 [2014] ). Were we to consider it, we would agree that the prosecutor impermissibly commented that defendant offered no evidence to explain why his DNA was on the handgun and should not have suggested that to believe defendant would require believing that the police officers risked their jobs to frame him. Nevertheless, we would not find a “flagrant and pervasive pattern of prosecutorial misconduct so as to deprive [defendant] of a fair trial” (People v. VanVorst, 118 A.D.3d at 1037, 986 N.Y.S.2d 891 [internal quotation marks and citation omitted]; accord People v. Rivera, 124 A.D.3d 1070, 1075, 2 N.Y.S.3d 279 [2015] ; see People v. Hughes, 111 A.D.3d 1170, 1173, 975 N.Y.S.2d 507 [2013], lv. denied 23 N.Y.3d 1038, 993 N.Y.S.2d 251, 17 N.E.3d 506 [2014] ). Rather, the prosecutor's summation was primarily about the “proved facts and circumstances and the inferences to be drawn therefrom in order to support or undermine the credibility of any witness[es]” (People v. Bailey, 58 N.Y.2d 272, 277, 460 N.Y.S.2d 912, 447 N.E.2d 1273 [1983] ), and, considered in context, the improper comments would not require reversal (see People v. Goldston, 126 A.D.3d 1175, 1180–1181, 5 N.Y.S.3d 600 [2015] ; People v. Head, 90 A.D.3d 1157, 1158, 933 N.Y.S.2d 774 [2011] ; People v. McCombs, 18 A.D.3d 888, 890, 795 N.Y.S.2d 108 [2005] ).

We also find unpersuasive defendant's contention that County Court deprived him of his right to counsel by denying his pretrial request for substitution of counsel. Defendant's generalized complaints that counsel initially assigned to him by the Public Defender's office did not spend enough time meeting with him and could not represent him “in the right fashion” did not trigger the need for an inquiry into whether good cause existed for substitution (see People v. Smith, 18 N.Y.3d 588, 593, 942 N.Y.S.2d 5, 965 N.E.2d 232 [2012] ; People v. Beriguette, 84 N.Y.2d 978, 980, 622 N.Y.S.2d 497, 646 N.E.2d 799 [1994] ; People v. Donovan, 248 A.D.2d 895, 896, 670 N.Y.S.2d 612 [1998], lv. denied 92 N.Y.2d 851, 677 N.Y.S.2d 81, 699 N.E.2d 441 [1998] ; People v. Frayer, 215 A.D.2d 862, 863–864, 627 N.Y.S.2d 107 [1995], lv. denied 86 N.Y.2d 794, 632 N.Y.S.2d 507, 656 N.E.2d 606 [1995] ). Furthermore, we note that defendant went to trial with a different attorney from the Public Defender's office, about whom he has not complained.

Nor is there any basis to disturb the sentence. County Court properly considered defendant's role...