                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 16, 2016                     106667
________________________________

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

BOBBY SMITH,
                    Appellant.
________________________________


Calendar Date:   April 21, 2016

Before:   McCarthy, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.

                             __________


     David E. Woodin, Catskill, for appellant.

      Paul Czajka, District Attorney, Hudson (James A. Carlucci
of counsel), for respondent.

                             __________


Devine, J.

      Appeal from a judgment of the County Court of Columbia
County (Koweek, J.), rendered January 15, 2014, upon a verdict
convicting defendant of the crimes of burglary in the second
degree and robbery in the third degree.

      Several masked men participated in a home invasion in
Columbia County during the early morning hours of August 2, 2012,
but the occupants were able to call 911 before the intruders
could restrain them. The perpetrators fled in a vehicle after
deputies from the Columbia County Sheriff's Office arrived on the
scene. Unaware of that turn in events, troopers dispatched by
the State Police were nearing the residence. The troopers
observed a vehicle approaching from the direction of the
residence and activated their emergency lights in order to ensure
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that the other vehicle would yield at a narrow bridge. The
vehicle responded by making a hard right turn onto another road
while its right rear passenger door was open, piquing the
suspicions of the troopers and prompting a high speed chase. The
chase concluded when the vehicle left the road and became mired
in a pond, and defendant was apprehended sitting in the water
next to the vehicle.

      Defendant and four codefendants were thereafter charged in
an indictment with burglary in the first degree and robbery in
the first degree. Following a hearing, County Court rejected
defendant's application to suppress evidence recovered in the
aftermath of the chase. County Court further ordered that
defendant be tried separately from his codefendants and, at the
end of that trial, a jury convicted defendant of the lesser
included offenses of burglary in the second degree and robbery in
the third degree. County Court sentenced defendant to an
aggregate prison term of 12 years, to be followed by postrelease
supervision of three years, and defendant now appeals.

      We affirm. Defendant challenges the propriety of County
Court's suppression ruling, primarily arguing that the troopers
were not justified in beginning the pursuit that led to his
arrest. In that regard, "a defendant's flight in response to an
approach by the police, combined with other specific
circumstances indicating that the suspect may be engaged in
criminal activity, may give rise to reasonable suspicion, the
necessary predicate for police pursuit" (People v Sierra, 83 NY2d
928, 929 [1994]; accord People v Woods, 98 NY2d 627, 628 [2002];
People v Daniels, 24 AD3d 970, 971-972 [2005], lv denied 6 NY3d
811 [2006]). County Court relied upon the suppression hearing
testimony of one of the troopers involved in the pursuit and,
inasmuch as our review of the record does not reveal that
reliance to have been "clearly erroneous," we accord "great
deference" to it (People v Musto, 106 AD3d 1380, 1380 [2013], lv
denied 21 NY3d 1007 [2013]; see People v Davis, 83 AD3d 1210,
1212 [2011], lv denied 17 NY3d 794 [2011]).

      The trooper specifically testified to seeing a vehicle
traveling toward them from the direction of a nearby residence
that he knew from the dispatch call was in the process of being
                              -3-                106667

burglarized. The troopers activated the emergency lights to
ensure that the vehicle would yield the right-of-way and allow
them to quickly reach the residence but, instead of pulling over,
the vehicle made a hard right turn onto another road while the
right rear passenger door was open (see Vehicle and Traffic Law
§ 1144 [a]). At a minimum, that sequence of events gave rise to
a reasonable suspicion that the operator of the vehicle was
engaging in reckless driving and permitted the pursuit that
followed (see Vehicle and Traffic Law § 1212; People v Carr, 99
AD3d 1173, 1175 [2012], lv denied 20 NY3d 1010 [2013]; People v
Cobb, 172 Misc 2d 851, 852-853 [1997], lv denied 90 NY2d 856
[1997]; People v Simmons, 7 Misc 2d 517, 518 [1957]). The driver
of the vehicle then refused to stop and engaged the troopers in a
high speed chase, several of the vehicle's occupants fled after
it crashed and defendant was found in close proximity to the
abandoned vehicle, all of which afforded probable cause to place
defendant under arrest (see Penal Law § 270.25; Vehicle and
Traffic Law § 1212; People v Samms, 258 AD2d 676, 677 [1999], mod
on other grounds 95 NY2d 52 [2000]). County Court, as a result,
properly denied defendant's suppression motion.

      Defendant next contends that County Court committed
reversible error in misleadingly charging the jury that a person
is guilty of burglary in the second degree when he or she
"knowingly enters or remains unlawfully in a [dwelling] with the
intent to commit a crime therein" (emphasis added) (cf. People v
Gaines, 74 NY2d 358, 363 [1989]; CJI2d [NY] Penal Law § 140.25
[2]). Defendant raised no objection to that jury charge before
County Court and, as such, the issue is not preserved for
appellate review (see CPL 470.05 [2]; People v Melendez, 16 NY3d
869, 870 [2011]; People v Heiserman, 127 AD3d 1422, 1424-1425
[2015]). Regardless, "defendant did not present any evidence,
nor is there any reasonable view of the evidence, that would lead
to the conclusion that [his] intent to commit the crime was
formed after his unlawful entry" (People v Fenderson, 203 AD2d
585, 586 [1994], lv denied 84 NY2d 825 [1994]). The witnesses at
trial consistently testified that defendant and his compatriots
were masked and gloved when they forced their way into the
residence, making his intent at the time of entry rather clear.
Inasmuch as the jury could not have been misled by the charge
under these circumstances, any error was harmless and we perceive
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no reason to take corrective action in the interest of justice
(see People v Curella, 296 AD2d 578, 578 [2002]; People v
Castano, 236 AD2d 215, 215 [1997], lv denied 89 NY2d 1033 [1997];
People v Fenderson, 203 AD2d at 586).

      Defendant's remaining argument is that the sentence imposed
was harsh and excessive but, suffice it to say, "our review of
the record reveals neither an abuse of discretion by County Court
nor the existence of extraordinary circumstances warranting a
reduction of the sentence in the interest of justice" (People v
Murphy, 56 AD3d 951, 951 [2008], lv denied 12 NY3d 786 [2009]).

     McCarthy, J.P., Egan Jr., Lynch and Mulvey, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
