PEOPLE v. McCOY (2007)

 On appeal 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] ), defendant contends that County Court erred in refusing to suppress evidence and statements he made to the police because they lacked reasonable suspicion to pursue him and probable cause to arrest him.   We reject that contention.   After hearing a radio broadcast that was based upon information gathered by his fellow officers during the investigation of a robbery, the officer approached defendant to question him about his presence near the scene of the robbery.   Defendant then fled on foot, and we conclude that his flight “combined with those other specific circumstances indicative of criminality on his part [communicated by the radio broadcast], gave rise to reasonable suspicion justifying the officer's pursuit of defendant” (People v. Nesmith, 289 A.D.2d 1049, 735 N.Y.S.2d 699, lv. denied 97 N.Y.2d 758, 742 N.Y.S.2d 619, 769 N.E.2d 365;  see People v. Holmes, 81 N.Y.2d 1056, 1057-1058, 601 N.Y.S.2d 459, 619 N.E.2d 396).   In addition, the officer testified at the suppression hearing that defendant was repeatedly looking over his shoulder at the officer and sticking his hand into his pocket while fleeing, which led the officer to believe that defendant possessed a weapon (see generally Matter of Al F., 17 A.D.3d 141, 793 N.Y.S.2d 352).   Contrary to the contention of defendant, he was not under arrest at the time that he was handcuffed and placed in a police vehicle for an investigatory detention (see People v. Galloway, 40 A.D.3d 240, 835 N.Y.S.2d 135, lv. denied 9 N.Y.3d 844, 840 N.Y.S.2d 770, 872 N.E.2d 883;  People v. Gatling, 38 A.D.3d 239, 831 N.Y.S.2d 157, lv. denied 9 N.Y.3d 865, 840 N.Y.S.2d 894, 872 N.E.2d 1200;  see also People v. Oglesby, 15 A.D.3d 888, 889, 788 N.Y.S.2d 793, lv. denied 4 N.Y.3d 855, 797 N.Y.S.2d 429, 830 N.E.2d 328;  see generally People v. White, 35 A.D.3d 1263, 1264, 825 N.Y.S.2d 881, lv. denied 8 N.Y.3d 947, 951, 836 N.Y.S.2d 558, 561, 868 N.E.2d 241, 244).   The police had probable cause to arrest defendant when they discovered a loaded gun in a ravine along defendant's flight path (see People v. Williams, 28 A.D.3d 1095, 813 N.Y.S.2d 615, lv. denied 7 N.Y.3d 765, 819 N.Y.S.2d 890, 853 N.E.2d 261).

 We reject the further contention of defendant that the court erred in denying his motion to dismiss the jury pool on the ground that it did not reflect a fair cross section of the community.   Defendant “failed to set forth sufficient facts demonstrating a systematic exclusion of African-Americans from the jury pool” (People v. Owens, 39 A.D.3d 1260, 1260, 836 N.Y.S.2d 385, lv. denied 9 N.Y.3d 849, 840 N.Y.S.2d 775, 872 N.E.2d 888;  see People v. Cotton, 38 A.D.3d 1189, 831 N.Y.S.2d 806, lv. denied 8 N.Y.3d 983, 838 N.Y.S.2d 486, 869 N.E.2d 662).   Contrary to the further contention of defendant, there were no Batson violations.   The People offered race-neutral reasons for each peremptory challenge at issue, and the reasons were not pretextual (see generally People v. Smocum, 99 N.Y.2d 418, 422, 757 N.Y.S.2d 239, 786 N.E.2d 1275;  People v. Allen, 86 N.Y.2d 101, 109-110, 629 N.Y.S.2d 1003, 653 N.E.2d 1173).   Specifically, the People explained that they used peremptory challenges with respect to two Hispanic prospective jurors who they believed would likely be sympathetic toward defendant.   One of those prospective jurors was the friend of a convicted murderer and had recently visited another friend in jail, and the other had recently visited her uncle in jail (see People v. Ball, 11 A.D.3d 904, 905, 782 N.Y.S.2d 228, lv. denied 3 N.Y.3d 755, 788 N.Y.S.2d 671, 821 N.E.2d 976, 4 N.Y.3d 741, 790 N.Y.S.2d 653, 824 N.E.2d 54;  People v. Cuthrell, 284 A.D.2d 982, 726 N.Y.S.2d 903;  see also People v. Feliciano, 228 A.D.2d 519, 644 N.Y.S.2d 307, lv. denied 88 N.Y.2d 1068, 651 N.Y.S.2d 412, 674 N.E.2d 342).

 The court also properly denied defendant's request to charge the jury with the defense of temporary innocent possession of a weapon inasmuch as “there was no reasonable view of the evidence upon which the jury could have found that the defendant's possession was innocent” (People v. Johnson, 30 A.D.3d 439, 439, 817 N.Y.S.2d 340, lv. denied 7 N.Y.3d 813, 822 N.Y.S.2d 488, 855 N.E.2d 804).   The evidence established that, rather than taking the opportunity to relinquish the gun to the police officer, defendant instead chose to flee on foot, and he threw the gun into a ravine.   Defendant's conduct was thus “ ‘utterly at odds with any claim of innocent possession’ ” (People v. Sheehan, 41 A.D.3d 335, 335, 838 N.Y.S.2d 83, quoting People v. Williams, 50 N.Y.2d 1043, 1045, 431 N.Y.S.2d 698, 409 N.E.2d 1372;  see People v. Gonzalez, 262 A.D.2d 1061, 693 N.Y.S.2d 362, lv. denied 93 N.Y.2d 1018, 697 N.Y.S.2d 577, 719 N.E.2d 938).

We have reviewed defendant's remaining contentions 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: