People v. Spann

• Decision Date: 15 March 2011
• Citation: 82 A.D.3d 1013,918 N.Y.S.2d 588
• Parties: The PEOPLE, etc., respondent, v. Gregory SPANN, appellant.
• Court: New York Supreme Court — Appellate Division

918 N.Y.S.2d 588 82 A.D.3d 1013 The PEOPLE, etc., respondent, v. Gregory SPANN, appellant. Supreme Court, Appellate Division, Second Department, New York. March 15, 2011.

Lynn W.L. Fahey, New York, N.Y. (Reyna E. Marder of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel and Ayelet Sela of counsel), for respondent.

REINALDO E. RIVERA, J.P., MARK C. DILLON, L. PRISCILLA HALL, and SHERI S. ROMAN, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Knopf, J.), rendered December 8, 2008, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.

On a motion by a defendant to suppress physical evidence, "the People have the burden of going forward to show the legality of the police conduct in the first instance" ( People v. Whitehurst, 25 N.Y.2d 389, 391, 306 N.Y.S.2d 673, 254 N.E.2d 905; see People v. Blinker, 80 A.D.3d 619, 915 N.Y.S.2d 593; People v. Hernandez, 40 A.D.3d 777, 778, 836 N.Y.S.2d 219; People v. Thomas, 291 A.D.2d 462, 463, 738 N.Y.S.2d 357; People v. Quinones, 61 A.D.2d 765, 402 N.Y.S.2d 196). The defendant, however, "bears the ultimate burden of proving, by a preponderance of the credible evidence, that the evidence should not be used against him" ( People v. Thomas, 291 A.D.2d at 463, 738 N.Y.S.2d 357; see People v. Berrios, 28 N.Y.2d 361, 367, 321 N.Y.S.2d 884, 270 N.E.2d 709; People v. Whitehurst, 25 N.Y.2d at 391, 306 N.Y.S.2d 673, 254 N.E.2d 905). "The credibility determinations of the Supreme Court following a suppression hearing are entitled to great deference on appeal and will not be disturbed unless clearly unsupported by the record" ( People v. Smith, 77 A.D.3d 980, 981, 910 N.Y.S.2d 492 [internal quotation marks omitted]; see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380; People v. Blinker, 80 A.D.3d 619, 915 N.Y.S.2d 593; People v. Johnson, 79 A.D.3d 905, 912 N.Y.S.2d 303;People v. Castro, 73 A.D.3d 800, 800-801, 899 N.Y.S.2d 653; People v. Shackleford, 57 A.D.3d 578, 868 N.Y.S.2d 717).

"Where a testifying officer claims to have seen that which common sense dictates could not have been seen, courts have repeatedly deemed this testimony patently tailored to meet constitutional objections" ( People v. Lebron, 184 A.D.2d 784, 787, 585 N.Y.S.2d 498; see People v. Rutledge, 21 A.D.3d 1125, 1126, 804 N.Y.S.2d 321; People v. Lewis, 195 A.D.2d 523, 524, 600 N.Y.S.2d 272). Here, contrary to the defendant's contention, the arresting officer's testimony at the pretrial hearing that he observed, in plain view and without leaning into the car in question, the butt of a handgun protruding from beneath the driver's seat while he was squatting in the space created by the open front passenger-side door, was not incredible as a matter of law ( see People v. James, 19 A.D.3d 617, 618, 798 N.Y.S.2d 483; People v. Burgess, 168 A.D.2d 685, 686, 564 N.Y.S.2d 183; People v. Kalish, 166 A.D.2d 610, 611, 561 N.Y.S.2d 54; People v. Burke, 146 A.D.2d 706, 706-707, 537 N.Y.S.2d 60). Moreover, the hearing testimony does not support the defendant's contention that the officer's testimony was a fabrication tailored to nullify constitutional objections ( see People v. Glenn, 53 A.D.3d 622, 624-625, 861 N.Y.S.2d 781; People v. James, 19 A.D.3d at 618, 798 N.Y.S.2d 483; People v. Burgess, 168 A.D.2d at 686, 564 N.Y.S.2d 183; cf. People v. Miret-Gonzalez, 159 A.D.2d 647, 649, 552 N.Y.S.2d 958; People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500). Accordingly, the Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress the handgun.

However, the cumulative effect of the prosecutor's improper comments during summation requires a new trial. While the defendant's claim regarding the comments made by the prosecutor during summation is partially unpreserved for appellate review, we nevertheless review it in the exercise of our interest of justice jurisdiction ( see CPL 470.15[6][a]; People v. Badine, 301 A.D.2d 178, 180, 752 N.Y.S.2d 679; Matter of Stagnar v. Stagnar, 98 A.D.2d 983, 984, 470 N.Y.S.2d 224).

"[I]n summing up to the jury, [the prosecutor] must stay within 'the four corners of the evidence' and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the accused" ( People v. Bartolomeo, 126 A.D.2d 375, 390, 513 N.Y.S.2d 981, quoting People v. Ashwal, 39 N.Y.2d 105, 109-110, 383 N.Y.S.2d 204, 347 N.E.2d 564). At trial, the arresting officer testified that he observed the defendant "sweating very profusely" and his heart beating rapidly during the traffic stop. The defendant presented medical evidence to establish that his perspiration and rapid heart rate were the result of hypertension. During summation, the prosecutor improperly commented on the defendant's medical evidence by repeatedly referring to it as a "distraction," a "smokescreen," and "smoke and mirrors," while at the same time arguing in support of the People's case that the defendant's physical condition was evidence of consciousness of guilt ( see People v. Pagan, 2 A.D.3d 879, 880, 769 N.Y.S.2d 741; People v. Ortiz, 125 A.D.2d 502, 503, 509 N.Y.S.2d 418; People v. Torres, 111 A.D.2d 885, 886-887, 490 N.Y.S.2d 793; cf. People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885; People v. Flores, 191 A.D.2d 306, 307, 595 N.Y.S.2d 173). The prosecutor also impermissibly shifted the burden of proof to the defendant by informing the jurors that if they did not find the defendant's testimony "reasonable," they could not "form the basis of reasonable doubt"( see People v. Pagan, 2 A.D.3d at 880, 769 N.Y.S.2d 741; People v. Bull, 218 A.D.2d 663, 665, 630...