                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: June 18, 2015                      105473
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

RASHAN L. MITCHELL,
                    Appellant.
________________________________


Calendar Date:    April 30, 2015

Before:    Lahtinen, J.P., Garry, Egan Jr. and Rose, JJ.

                              __________


     Neal D. Futerfas, White Plains, for appellant.

      D. Holley Carnright, District Attorney, Kingston (Joan
Gudesblatt Lamb of counsel), for respondent.

                              __________


Rose, J.

      Appeal from a judgment of the County Court of Ulster County
(Williams, J.), rendered August 3, 2012, upon a verdict
convicting defendant of the crimes of criminal possession of a
weapon in the second degree and criminal possession of a weapon
in the third degree.

      Defendant was charged with criminal possession of a weapon
in both the second and third degrees after a loaded revolver was
found lying beneath him on the ground when he was apprehended by
police officers who had been surveilling an illegal drug
transaction. He was convicted as charged and County Court
sentenced him to an aggregate prison term of 15 years plus five
years of postrelease supervision. He now appeals.
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      Initially, we cannot agree with defendant's contention that
the statutes with which he was charged are unconstitutional (see
Penal Law §§ 265.02 [1]; 265.03 [3]). As we have previously
held, "Penal Law article 265 does not effect a complete ban on
handguns and is, therefore, not a 'severe restriction' improperly
infringing upon defendant's Second Amendment rights'" (People v
Perkins, 62 AD3d 1160, 1161 [2009], lvs denied 13 NY3d 748
[2009], quoting District of Columbia v Heller, 554 US 570, 629
[2008]; see People v Hughes, 83 AD3d 960, 961-962 [2011], affd 22
NY3d 44 [2013]).

      Nor can we agree that defendant's motion to suppress the
weapon as the result of an unlawful seizure should have been
granted. Police detectives testified that, while they were
performing radio and video surveillance of a confidential
informant (hereinafter the CI) and an undercover officer
attempting to purchase narcotics in an area known for its drug
activity, they observed defendant acting as a lookout during the
transaction. Defendant was dressed in a similar manner to his
two male companions and, according to a detective, drug dealers
often dress in a similar manner in order to make an accurate
description more difficult. After the CI and the undercover
officer confirmed that narcotics had been purchased from one of
defendant's companions and provided a description, detectives
approached defendant's group as they walked away and ordered them
to stop and put up their hands. Although defendant initially
complied, he then turned, reached his hand toward the back of his
waist and started running. The police chased defendant until he
fell while attempting to go over a fence. Seeing something black
in defendant's hands, a detective jumped on top of him, pinning
defendant to the ground with his hands beneath his body. After
defendant was subdued, a loaded black revolver was found on the
ground beneath him.

      A reasonable suspicion that a particular individual was
involved in a crime is required in order to justify a forcible
detention (see People v De Bour, 40 NY2d 210, 223 [1976]).
Contrary to defendant's argument, he was not approached and
ordered to stop merely because of his presence in a high-crime
area. Rather, his manner of dress and conduct gave detectives
reasonable suspicion to believe that he had been part of the drug
                              -3-                105473

transaction engaged in by the CI, thus justifying their initial
approach and subsequent pursuit (see People v Woods, 98 NY2d 627,
628 [2002]; People v Sierra, 83 NY2d 928, 930 [1994]; People v
Martinez, 80 NY2d 444, 448 [1992]). According weight to County
Court's ability to observe the witnesses and view the
surveillance video (see People v Prochilo, 41 NY2d 759, 761
[1977]; People v Morris, 105 AD3d 1075, 1077 [2013], lv denied 22
NY3d 1042 [2013]), we perceive no basis to disturb the court's
determination to deny the suppression motion (see People v Ford,
110 AD3d 1368, 1371 [2013], lv denied 24 NY3d 1043 [2014]; People
v Davenport, 92 AD3d 689, 690-691 [2012], lv dismissed 19 NY3d
959 [2012]).

      Although defendant also contends that the prosecutor's
remarks during summation improperly shifted the burden of proof,
defendant did not object to the summation and, thus, this issue
is not preserved for our review (see People v VanVorst, 118 AD3d
1035, 1037 [2014]; People v Reichel, 110 AD3d 1356, 1364 [2013],
lv denied 22 NY3d 1090 [2014]). Were we to consider it, we would
agree that the prosecutor impermissibly commented that defendant
offered no evidence to explain why his DNA was on the handgun and
should not have suggested that to believe defendant would require
believing that the police officers risked their jobs to frame
him. Nevertheless, we would not find a "flagrant and pervasive
pattern of prosecutorial misconduct so as to deprive [defendant]
of a fair trial" (People v VanVorst, 118 AD3d at 1037 [internal
quotation marks and citation omitted]; accord People v Rivera,
124 AD3d 1070, 1075 [2015]; see People v Hughes, 111 AD3d 1170,
1173 [2013], lv denied 23 NY3d 1038 [2014]). Rather, the
prosecutor's summation was primarily about the "proved facts and
circumstances and the inferences to be drawn therefrom in order
to support or undermine the credibility of any witness[es]"
(People v Bailey, 58 NY2d 272, 277 [1983]), and, considered in
context, the improper comments would not require reversal (see
People v Goldston, 126 AD3d 1175, 1180-1181 [2015]; People v
Head, 90 AD3d 1157, 1158 [2011]; People v McCombs, 18 AD3d 888,
890 [2005]).

      We also find unpersuasive defendant's contention that
County Court deprived him of his right to counsel by denying his
pretrial request for substitution of counsel. Defendant's
                              -4-                105473

generalized complaints that counsel initially assigned to him by
the Public Defender's office did not spend enough time meeting
with him and could not represent him "in the right fashion" did
not trigger the need for an inquiry into whether good cause
existed for substitution (see People v Smith, 18 NY3d 588, 593
[2012]; People v Beriguette, 84 NY2d 978, 980 [1994]; People v
Donovan, 248 AD2d 895, 896 [1998], lv denied 92 NY2d 851 [1998];
People v Frayer, 215 AD2d 862, 863-864 [1995], lv denied 86 NY2d
794 [1995]). Furthermore, we note that defendant went to trial
with a different attorney from the Public Defender's office,
about whom he has not complained.

      Nor is there any basis to disturb the sentence. County
Court properly considered defendant's role in the drug
transaction that preceded his arrest (see People v Mason, 299
AD2d 724, 726 [2002], lv denied 100 NY2d 564 [2003]), and the
record does not establish that it acted out of personal animosity
or penalized defendant for exercising his right to trial (see
People v Brown, 123 AD3d 1298, 1299 [2014]; People v Griffin, 122
AD3d 1068, 1071 [2014]; People v Mercado, 113 AD3d 930, 934
[2014], lv denied 23 NY3d 1040 [2014]). Rather, the court
specifically rejected the People's suggestion that defendant
should be punished for going to trial and considered the
appropriate factors in reaching its determination (see People v
Crockett, 30 AD3d 768, 771 [2006], lv denied 7 NY3d 866 [2006];
People v Duplessis, 16 AD3d 846, 848 [2005], lv denied 4 NY3d 853
[2005]). We have considered defendant's remaining contentions,
including his claim that the cumulative effect of errors deprived
him of a fair trial, and find them to be unavailing.

     Lahtinen, J.P., Garry and Egan Jr., JJ., concur.
                        -5-                  105473

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
