        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

685
KA 09-02473
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TYRONE C. BRADLEY, JR., DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered June 3, 2009. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of criminal possession of a weapon in the second degree
(Penal Law § 265.03 [3]), defendant contends that County Court erred
in denying his motion to suppress the firearm that he was charged with
possessing. Specifically, defendant contends that the police
unlawfully stopped him while he was walking his miniaturized motorbike
on the sidewalk, and that the firearm must be suppressed as a result
of that unlawful stop. We reject that contention. At the suppression
hearing, a police officer testified that he stopped defendant because
defendant was riding the motorbike in the road without a helmet. When
the officer asked defendant whether he had any identification,
defendant answered, “no,” and took a step back, whereupon the officer
reached toward defendant in an attempt to frisk him. Before the
officer could detain him, however, defendant ran away and, during his
flight, punched another officer who had joined in the pursuit.
Defendant was soon apprehended and found to be in possession of a
loaded firearm, 20 bags of marihuana, and more than $2,000 in cash.

     During a break in the suppression hearing, defendant learned that
the police had inadvertently sold his motorbike at auction. The sale
took place approximately four months after defendant’s arrest and two
months before the suppression hearing. When the suppression hearing
resumed, defendant’s uncle testified that the motorbike was inoperable
on the day of defendant’s arrest, thereby calling into question the
                                 -2-                           685
                                                         KA 09-02473

officer’s hearing testimony that defendant had been riding the
motorbike without a helmet. In rebuttal, the People called another
police officer as a witness, who testified that she saw defendant
riding the same motorbike in the road 5 to 10 minutes before he was
stopped and that, after defendant was taken into custody, she started
the motorbike and “revved the engine.” The court then permitted
defendant to take the stand as the final witness. Defendant testified
that the motorbike would not start on the day in question and that he
was pushing it on the sidewalk to his house from his uncle’s house,
where it had been stored since it had broken down. The court denied
defendant’s suppression motion, stating that its decision was based on
the testimony that it found to be credible.

     In support of his contention that the stop was unlawful,
defendant contends that the court should have drawn a permissive
adverse inference against the People due to the failure of the police
to preserve the motorbike. At the suppression hearing, however,
defendant did not request a permissive adverse inference; instead,
defendant asked the court to preclude any testimony at the hearing
about the motorbike and to strike any such testimony that had already
been given. In the alternative, defendant asked the court to assume
that the condition of the motorbike was as defendant alleged, i.e.,
inoperable. Thus, defendant’s contention that the court should have
drawn a permissive adverse inference is unpreserved for our review
(see CPL 470.05 [2]).

     In any event, even assuming, arguendo, that defendant requested
the court to draw an adverse inference, and that the court erred in
failing to do so (see People v Handy, 20 NY3d 663, 669-670), we
conclude that such error is harmless (see People v Blake, 105 AD3d
431, 431). We note that, in his motion papers, defendant’s attorney
stated that a suppression hearing was warranted because defendant,
when detained by the police, was “sitting on the front lawn of a home
on Reynolds Street” with several of his friends. Although defense
counsel knew at the time that the police had claimed to have stopped
defendant for riding the motorbike without a helmet, he did not assert
that the motorbike was inoperable or that defendant was walking it on
the sidewalk when approached by the police. It was only after
defendant learned that the motorbike had been sold at auction that
defendant asserted that the motorbike was inoperable. Under those
circumstances, and considering that the court evidently credited the
testimony of the police officers (see generally People v Prochilo, 41
NY2d 759, 761), we conclude that there is no reasonable possibility
that the court would have found the stop to have been unlawful even if
it had drawn a permissive adverse inference against the People (see
generally People v Crimmins, 36 NY2d 230, 237).

     We have reviewed defendant’s remaining contentions and conclude
that they lack merit.


Entered:   July 5, 2013                         Frances E. Cafarell
                                                Clerk of the Court
