People v. Pringle

• Decision Date: 24 February 2016
• Citation: 25 N.Y.S.3d 635,136 A.D.3d 1061
• Parties: The PEOPLE, etc., respondent, v. Marc PRINGLE, appellant.
• Court: New York Supreme Court — Appellate Division

136 A.D.3d 1061

25 N.Y.S.3d 635

The PEOPLE, etc., respondent,

v.Marc PRINGLE, appellant.

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

Feb. 24, 2016.

Lynn W.L. Fahey, New York, N.Y. (Jenin Younes of counsel), for appellant, and appellant pro se.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen C. Abbot, Brooke E. Barnes, and Jill A. Gross Marks of counsel), for respondent.

REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, SANDRA L. SGROI, and SYLVIA O. HINDS–RADIX, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Zayas, J.), rendered October 2, 2012, convicting him of criminal possession of a weapon in the second degree (two counts) and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Aloise, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

The defendant was convicted of criminal possession of a weapon in the second degree (two counts) and criminal possession of a weapon in the third degree, based upon, among other things, the testimony of two police officers that they recovered a loaded, operable, and defaced firearm from the defendant's pocket during a stop and frisk on a sidewalk in Queens.

The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05[2] ; People v. Kolupa, 13 N.Y.3d 786, 787, 887 N.Y.S.2d 536, 916 N.E.2d 430 ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish, beyond a reasonable doubt, the defendant's guilt of criminal possession of a weapon in the second degree (two counts) (see Penal Law § 265.03[1][b] ; [3]; Penal Law § 265.15[4] ; People v. Galindo, 23 N.Y.3d 719, 722–724, 993 N.Y.S.2d 525, 17 N.E.3d 1121 ) and criminal possession of a weapon in the third degree (see Penal Law § 265.02[3] ). Contrary to the defendant's contention, the People presented evidence disproving, beyond a reasonable doubt, the defense of temporary and lawful possession of a weapon (see People v. Rodriguez, 122 A.D.3d 1425, 1426–1427, 996 N.Y.S.2d 856 ; People v. Sooknanan, 92 A.D.3d 810, 810, 938 N.Y.S.2d 467 ; People v. Ortiz, 172 A.D.2d 696, 568 N.Y.S.2d 829 ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

The defendant argues that he was deprived of the effective assistance of counsel as a result of his trial counsel's failure to raise at the suppression hearing the allegedly meritorious contention that the anonymous call did not supply reasonable suspicion for the stop and frisk. However, the evidence at trial established that the call was made by an identified citizen informant, who, unlike an anonymous caller, is presumed to be reliable (see generally Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 ; People v. Parris, 83 N.Y.2d 342, 350, 610 N.Y.S.2d 464, 632 N.E.2d 870 ). Accordingly, the record reveals a legitimate explanation for the alleged instance of ineffective assistance by the defendant's trial counsel (see generally People v. Benevento, 91 N.Y.2d 708, 709, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Prince, 128 A.D.3d 987, 988, 10 N.Y.S.3d 146 ; cf. People v. Clermont, 22 N.Y.3d 931, 933–934, 977 N.Y.S.2d 704, 999 N.E.2d 1149 ).

The defendant's contention that the prosecutor improperly cross-examined him during the trial regarding his prearrest silence and used his prearrest silence to impeach his credibility during summation is unpreserved for appellate review (see CPL 470.05[2] ; People v. Collins, 109 A.D.3d 482, 482, 970 N.Y.S.2d 80 ; People v. Gill, 54 A.D.3d 965, 965–966, 864 N.Y.S.2d 135 ; People v. Caicedo, 173 A.D.2d 630, 630, 570 N.Y.S.2d 215 ). In any event, to the extent that the prosecutor's questions and remarks concerned the defendant's conduct in failing to contact the police or flag down the police officers after he purportedly found the gun, they were not improper (see People v. Mulligan, 118 A.D.3d 1372, 1374, 988 N.Y.S.2d 354 ; People v. Guzman, 259 A.D.2d 364, 365, 688 N.Y.S.2d 10 ; see also People v. Alls,

117 A.D.3d 1190, 1191–1192, 984 N.Y.S.2d 677 ; People v. Curry, 85 A.D.3d 1209, 1211, 924 N.Y.S.2d 217 ). Further, any error resulting from the prosecutor's use of the defendant's prearrest silence for impeachment purposes was harmless, because there was overwhelming evidence of the defendant's guilt and no significant probability that the error contributed to the conviction (see People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Nelson, 69 A.D.3d 762, 763, 893 N.Y.S.2d 189 ; cf. People v. Williams, 25 N.Y.3d 185, 194, 8 N.Y.S.3d 641, 31 N.E.3d 103 ).

The defendant's contention, raised in his main brief and his pro se supplemental brief, that he was deprived of a fair trial by certain improper remarks made by the prosecutor during his summation is also unpreserved for appellate review (see CPL 470.05[2] ; People v. Taylor, 120 A.D.3d 519, 520, 990 N.Y.S.2d 635 ). In any event, most of the challenged remarks were within the broad bounds of rhetorical comment permissible in closing arguments, and constituted fair response to arguments made by defense counsel in summation or fair comment on the evidence (see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281 ; People v. Galloway, 54 N.Y.2d 396, 399–401, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564 ; People v. Barber, 133 A.D.3d 868, 871, 22 N.Y.S.3d 63 ). Moreover, contrary to the defendant's contention, any instances of prosecutorial misconduct during cross-examination and summation were not, either individually or collectively, so egregious as to deprive the defendant of a fair trial (see People v. Barber, 133 A.D.3d at 871, 22 N.Y.S.3d 63 ; People v. Stevenson, 129 A.D.3d 998,...