PEOPLE v. FLETCHER (2026)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Eugene M. Guarino, J.), rendered February 7, 2023, convicting him of criminal possession of a weapon in the second degree 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, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

“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. Greenland, 243 A.D.3d 587, 588, 243 N.Y.S.3d 161 [internal quotation marks omitted];  see People v. Johnson, 243 A.D.3d 679, 680, 245 N.Y.S.3d 312).  “The defendant bears the ultimate burden of proving that the evidence should not be used against him or her” (People v. Fasoli, 242 A.D.3d 900, 901, 241 N.Y.S.3d 795;  see People v. Gaddy, 241 A.D.3d 578, 579, 238 N.Y.S.3d 614).  “The hearing court's credibility determinations are entitled to deference on appeal” (People v. Greenland, 243 A.D.3d at 588, 243 N.Y.S.3d 161;  see People v. Fasoli, 242 A.D.3d at 901, 241 N.Y.S.3d 795).

Here, the challenged suppression determinations were proper.  The People established that the police officers who arrested the defendant did not pursue or seize him until after they saw him with a gun, at which point they had reasonable suspicion to pursue him and probable cause to arrest him (see People v. Avant, 216 A.D.3d 662, 664, 187 N.Y.S.3d 785;  People v. Sumpter, 286 A.D.2d 450, 451, 729 N.Y.S.2d 506).  Further, the Supreme Court properly determined that the defendant abandoned the gun when he threw it beneath a tree and, thus, that he had no standing to contest its subsequent seizure and admission into evidence since he failed to demonstrate that he threw the gun away in response to any unlawful police conduct (see People v. White, 153 A.D.3d 1369, 1370, 61 N.Y.S.3d 603;  People v. Amuso, 44 A.D.3d 781, 783, 843 N.Y.S.2d 395).

The defendant's contention that a particular police officer's testimony at the suppression hearing was incredible as a matter of law and patently tailored to overcome constitutional objections is unpreserved for appellate review (see CPL 470.05[2];  People v. Delgado, 221 A.D.3d 909, 910, 200 N.Y.S.3d 414;  People v. Taylor, 120 A.D.3d 519, 520, 990 N.Y.S.2d 635).  In any event, this contention is without merit.  Moreover, upon the exercise of our factual review power (see CPL 470.15[5] ), we discern no basis for disturbing the Supreme Court's decision to credit such testimony (see People v. Turner, 203 A.D.3d 758, 760, 160 N.Y.S.3d 626;  People v. Martinez, 180 A.D.3d 809, 810, 118 N.Y.S.3d 713).

Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel under the New York Constitution based on defense counsel's failure to specifically argue that the police officer's testimony at the suppression hearing was incredible as a matter of law and patently tailored to overcome constitutional objections, since, viewing defense counsel's performance in its totality, counsel provided meaningful representation (see People v. Debellis, 40 N.Y.3d 431, 436, 202 N.Y.S.3d 740, 225 N.E.3d 859;  People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584).  Further, the defendant was not deprived of the effective assistance of counsel under the United States Constitution (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674).

The defendant's contention that he was deprived of a fair trial by improper remarks made by the prosecutor during summation is partially unpreserved for appellate review, since the defendant did not object to the majority of the remarks he now challenges (see CPL 470.05[2];  People v. Hankerson, 149 A.D.3d 778, 779, 51 N.Y.S.3d 169;  People v. Manigat, 136 A.D.3d 614, 616, 24 N.Y.S.3d 397).  In any event, most of the challenged remarks were proper because they were “within the broad bounds of rhetorical comment permissible in closing arguments, constituted a fair response to arguments made by defense counsel in summation, or constituted fair comment on the evidence” (People v. Morales, 201 A.D.3d 819, 819–820, 160 N.Y.S.3d 100;  see People v. Manigat, 136 A.D.3d at 616, 24 N.Y.S.3d 397).  To the extent that certain remarks were improper, they were not so flagrant or pervasive as to have deprived the defendant of a fair trial (see People v. Anderson, 213 A.D.3d 687, 688, 182 N.Y.S.3d 260;  People v. Ingrassia, 207 A.D.3d 751, 752, 170 N.Y.S.3d 896).  Further, defense counsel's failure to object to those remarks did not constitute ineffective assistance of counsel (see People v. Hankerson, 149 A.D.3d at 779, 51 N.Y.S.3d 169).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

IANNACCI, J.P., DOWLING, VENTURA and GOLIA, JJ., concur.