PEOPLE v. HUNTER

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Terrance HUNTER, a/k/a Jimmie Cohen, Defendant-Appellant.

Decided: January 30, 1997

Before SULLIVAN, J.P., and ROSENBERGER, WALLACH and WILLIAMS, JJ. Grace Vee, for Respondent. Michael A. Sheinberg, for Defendant-Appellant.

Judgment, Supreme Court, New York County (James Leff, J.), rendered May 15, 1995, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the first degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 15 years to life and 10 to 20 years, respectively, unanimously affirmed.

 The court properly denied defendant's motion to suppress physical evidence.   The radio run reporting that guns were being sold out of a described automobile at a particular location, and confirmatory police observations at the scene, provided an objective, credible reason for the police to approach the car in question and seek information from defendant, its sole occupant (see, People v. Harrison, 57 N.Y.2d 470, 475, 457 N.Y.S.2d 199, 443 N.E.2d 447).   When defendant fled at the sight of the police, who observed that defendant ran awkwardly and appeared to be clutching an object to his chest and out of view, the combined circumstances provided reasonable suspicion that criminal activity was at hand, thereby justifying the police pursuit and stop of defendant (People v. Matienzo, 81 N.Y.2d 778, 593 N.Y.S.2d 785, 609 N.E.2d 138).

The People proved defendant's guilt of the crimes charged beyond a reasonable doubt (People v. Malizia, 62 N.Y.2d 755, 476 N.Y.S.2d 825, 465 N.E.2d 364, cert. denied 469 U.S. 932, 105 S.Ct. 327, 83 L.Ed.2d 264).   Indeed, the evidence against defendant was overwhelming.

 Defendant's untruthful and misleading direct testimony regarding his prior felony convictions opened the door to the court's modification of its initial Sandoval ruling (People v. Santiago, 169 A.D.2d 557, 564 N.Y.S.2d 412, lv. denied 77 N.Y.2d 1000, 571 N.Y.S.2d 926, 575 N.E.2d 412).

 Despite an isolated misstatement during the jury charge on criminal possession of a controlled substance in the third degree, the trial court's jury charge regarding reasonable doubt, when viewed as a whole, repeatedly conveyed to the jury the proper standards and there is no basis for concluding that the jury did not follow such instruction (see, People v. Coleman, 70 N.Y.2d 817, 523 N.Y.S.2d 433, 517 N.E.2d 1319).

We perceive no abuse of discretion in sentencing.

Defendant's additional claims of error are without merit.

MEMORANDUM DECISION.