PEOPLE v. PORTER (2026)

Judgment, Supreme Court, New York County (Robert Mandelbaum, J. at hearing;  Curtis J. Farber, J. at plea and sentencing), rendered August 15, 2022, convicting defendant of attempted criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to a term of 61/212 years, unanimously affirmed.

Defendant made a valid waiver of his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied 589 U.S. 1302, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020]).  The combination of the court's colloquy and the detailed written waiver that defendant signed after consultation with counsel satisfied the requirements of a valid waiver which forecloses review of his suppression claim (see People v. Bawa, 234 A.D.3d 601, 602, 224 N.Y.S.3d 77 [1st Dept. 2025], lv denied 43 N.Y.3d 943, 231 N.Y.S.3d 419, 257 N.E.3d 114 [2025]).

In any event, as an alternative holding, we reject his claim on the merits.  The record did not show that the radio run transmitted the identity of the caller, and thus, for purposes of a reasonable suspicion analysis, the tip was anonymous (see People v. Brown, 172 A.D.3d 41, 42, 98 N.Y.S.3d 185 [1st Dept. 2019], lv denied 33 N.Y.3d 1067, 105 N.Y.S.3d 54, 129 N.E.3d 374 [2019]).  Although the description of a Black man wearing a white t-shirt involved in a dispute with a gun in the lobby of a specified building was generic, the officer observed defendant – a Black man wearing a light colored t-shirt—“right by the entrance to the building” reported in the call, two minutes after the transmission, and he was the only person at the location who matched the radioed description.  This provided the officers with a founded suspicion that criminal activity was afoot (see generally, People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976]).  That founded suspicion was elevated to reasonable suspicion when the officer, approaching in a marked vehicle, observed defendant walking quickly toward a black vehicle that was moving slowly through the crosswalk.  Defendant entered the front passenger seat of the car, which quickly drove away before defendant closed the car door.  This “unusual” behavior drew the officer's attention to defendant, and in conjunction with the radioed information, provided the officer with reasonable suspicion that defendant was involved in a crime (see People v. Williams, 146 A.D.3d 410, 411, 46 N.Y.S.3d 9 [1st Dept. 2017], lv. denied 29 N.Y.3d 954, 54 N.Y.S.3d 384, 76 N.E.3d 1087 [2017];  People v. Curtis, 29 A.D.3d 316, 317, 813 N.Y.S.2d 434 [1st Dept. 2006], lv denied 7 N.Y.3d 866, 824 N.Y.S.2d 611, 857 N.E.2d 1142 [2006]).

Defendant's challenges to counts 2, 3, and 4 of the indictment, based on the failure of the indictment to allege that the firearm was operable, are moot because he was not convicted of those counts (see People v. Johnson, 242 A.D.3d 588, 589, 241 N.Y.S.3d 248 [1st Dept. 2025];  People v. Watts, 234 A.D.3d 620, 621, 226 N.Y.S.3d 65 [1st Dept. 2025], lv denied 43 N.Y.3d 1059, 239 N.Y.S.3d 101, 265 N.E.3d 1118 [2025]).  In any event, his claims are non-jurisdictional and were waived by his guilty plea (see People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656 [1978];  People v. Tammaro, 155 A.D.3d 473, 475, 65 N.Y.S.3d 12 [1st Dept. 2017], lv denied 30 N.Y.3d 1109, 77 N.Y.S.3d 8, 101 N.E.3d 394 [2018]).  The indictment was not jurisdictionally defective for omitting the material element of operability.  Although the text of Penal Law §§ 265.03(1)(b), 265.03(3), and 265.02(3) is silent regarding operability, it is well established that by citing the name of the statute, the People alleged all of the statutory elements, even those that are the product of a “judicial gloss” (see People v. Smith, 237 A.D.3d 590, 590–591, 231 N.Y.S.3d 466 [1st Dept. 2025], lv denied 43 N.Y.3d 1048, 236 N.Y.S.3d 641, 263 N.E.3d 898 [2025];  People v. Daniels, 224 A.D.3d 554, 203 N.Y.S.3d 600 [1st Dept. 2024], lv denied 41 N.Y.3d 982, 210 N.Y.S.3d 749, 234 N.E.3d 365 [2024];  People v. Luis R., 220 A.D.3d 549, 549–550, 198 N.Y.S.3d 33 [1st Dept. 2023], lv denied 42 N.Y.3d 1080, 227 N.Y.S.3d 566, 252 N.E.3d 505 [2025]).  Count 4 of the indictment, charging possession of a large capacity ammunition feeding device, is not jurisdictionally defective for failing to allege the proviso, contained in Penal Law § 265.02(8) at the time of defendant's crime but since removed, permitting possession if that person lawfully possessed the device before January 15, 2013 and met other conditions, as such information was uniquely within defendant's knowledge such that affirmatively proving it would require the People to go to “intolerable lengths” (see People v. Davis, 13 N.Y.3d 17, 32, 884 N.Y.S.2d 665, 912 N.E.2d 1044 [2009]).