PEOPLE v. JOHNSON (2005)

 Defendant appeals from a judgment convicting him upon a jury verdict of two counts of criminal possession of a weapon in the third degree (Penal Law § 265.02[1], [4] ).   Supreme Court properly refused to suppress the weapon discarded by defendant while the police were pursuing him.   The testimony at the suppression hearing establishes that the officer who initially approached defendant and requested information from him had an “ articulable basis” for doing so (People v. Ocasio, 85 N.Y.2d 982, 984, 629 N.Y.S.2d 161, 652 N.E.2d 907;  see People v. Hollman, 79 N.Y.2d 181, 190, 581 N.Y.S.2d 619, 590 N.E.2d 204;  People v. De Bour, 40 N.Y.2d 210, 216-217, 386 N.Y.S.2d 375, 352 N.E.2d 562), i.e., the officer's belief that defendant resembled a robbery suspect depicted in a mug shot (see People v. Bethea, 239 A.D.2d 510, 658 N.Y.S.2d 361, lv. denied 90 N.Y.2d 902, 663 N.Y.S.2d 514, 686 N.E.2d 226;  People v. Reid, 173 A.D.2d 870, 571 N.Y.S.2d 75, lv. denied 78 N.Y.2d 972, 574 N.Y.S.2d 952, 580 N.E.2d 424).   The officer did not exceed the scope of his authority in asking defendant to provide the officer with his name and address (see generally People v. Valerio, 274 A.D.2d 950, 951, 710 N.Y.S.2d 497, affd. 95 N.Y.2d 924, 721 N.Y.S.2d 601, 744 N.E.2d 136, cert. denied 532 U.S. 981, 121 S.Ct. 1623, 149 L.Ed.2d 485;  People v. Powell, 89 N.Y.2d 1063, 1064, 659 N.Y.S.2d 832, 681 N.E.2d 1278;  Ocasio, 85 N.Y.2d at 985, 629 N.Y.S.2d 161, 652 N.E.2d 907).   During the encounter, the officer observed that defendant was wearing “Fat Albert” jeans similar to those worn by the robber.   Moreover, the officer recognized the address given by defendant as the address of the robbery suspect.   At that point in the encounter, after inviting the officer to accompany him to his nearby residence to obtain his identification papers, defendant fled the scene, providing the officer with the requisite suspicion to justify the pursuit of defendant (see People v. Sierra, 83 N.Y.2d 928, 930, 615 N.Y.S.2d 310, 638 N.E.2d 955).   During that pursuit, the officer observed defendant remove a gun from his pocket, warranting defendant's eventual arrest for criminal possession of a weapon (see People v. Leung, 68 N.Y.2d 734, 737, 506 N.Y.S.2d 320, 497 N.E.2d 687).   Defendant discarded the gun during the pursuit, warranting its seizure by the police (see id. at 736-737, 506 N.Y.S.2d 320, 497 N.E.2d 687).

Contrary to the further contention of defendant, the court did not err in denying his CPL 330.30 motion without conducting a hearing.   In support of the motion, defendant failed to raise a “ground appearing in the record which” would warrant reversal or modification of the conviction on appeal as a matter of law (CPL 330.30[1] ).   Indeed, defendant's motion was based on allegations of fact dehors the record, and thus “[t]he proper vehicle by which to make such factual claims is a motion pursuant to CPL 440.10” (People v. Morgan, 271 A.D.2d 248, 249, 706 N.Y.S.2d 390, lv. denied 95 N.Y.2d 855, 714 N.Y.S.2d 7, 736 N.E.2d 868;  see People v. Frias, 250 A.D.2d 495, 496, 673 N.Y.S.2d 416, lv. denied 92 N.Y.2d 982, 683 N.Y.S.2d 763, 706 N.E.2d 751;  see also People v. Knox, 134 A.D.2d 704, 704-705, 521 N.Y.S.2d 544, lv. denied 70 N.Y.2d 1007, 526 N.Y.S.2d 942, 521 N.E.2d 1085).

Similarly, the court did not err in determining that defendant was a persistent violent felony offender without conducting a hearing.   Defendant's allegations were insufficient to support the contention that the prior convictions were unconstitutionally obtained (see People v. Shepard, 268 A.D.2d 540, 701 N.Y.S.2d 650, lv. denied 95 N.Y.2d 804, 711 N.Y.S.2d 172, 733 N.E.2d 244;  see also People v. Allen, 4 A.D.3d 479, 479-480, 771 N.Y.S.2d 685, lv. denied 2 N.Y.3d 795, 781 N.Y.S.2d 294, 814 N.E.2d 466;   People v. Thompson, 300 A.D.2d 1032, 1033, 751 N.Y.S.2d 921, lv. denied 99 N.Y.2d 620, 757 N.Y.S.2d 831, 787 N.E.2d 1177).

We have considered defendant's remaining contentions, including the challenge to the severity of the sentence, and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: