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

252
KA 11-00002
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

EUGENE WOFFORD, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered October 21, 2010. The judgment
convicted defendant, upon a jury verdict, of criminal possession of a
weapon in the second degree, criminal possession of marihuana in the
third degree and reckless endangerment in the second degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of criminal possession of a weapon in the second
degree (Penal Law § 265.03 [3]), criminal possession of marihuana in
the third degree (§ 221.20), and reckless endangerment in the second
degree (§ 120.20). Contrary to defendant’s contention, Supreme Court
did not err in refusing to suppress the gun and drugs discarded by
defendant and later found by the police. A police officer testified
at the suppression hearing that he received an anonymous tip regarding
drug activity taking place at a certain location. Upon proceeding to
the location, the officer found defendant sitting in a parked vehicle,
which was similar to the description of the vehicle given by the
anonymous caller. As the officer spoke with defendant, he noticed
what appeared to be a pile of cigar tobacco on the ground outside the
vehicle, and the officer knew, based on his training and experience,
that emptying a cigar was a common method of preparing a marihuana
cigar, or a “blunt.” When the officer asked defendant to step out of
the vehicle, defendant instead started the vehicle and sped off,
almost striking another officer who was approaching the vehicle on
foot. During the ensuing chase, defendant discarded a bag out of the
passenger-side window. The bag was later recovered by the police and
was found to contain a loaded weapon and marihuana.

     The officer’s initial approach of defendant and request for
                                 -2-                          252
                                                        KA 11-00002

identification was a permissible level one encounter under People v De
Bour (40 NY2d 210; see generally People v Hollman, 79 NY2d 181, 191).
Although the officer’s request that defendant exit the parked vehicle
elevated the situation to a level three encounter under De Bour (see
People v Atwood, 105 AD2d 1055, 1055; see also People v Harrison, 57
NY2d 470, 475-476), we conclude that the officer had reasonable
suspicion that defendant was engaged in illegal activity based on the
anonymous tip and the officer’s observation of drug activity, i.e.,
the pile of cigar tobacco on the ground (see People v Mays, 190 Misc
2d 310, 316, affd 10 AD3d 556, lv denied 4 NY3d 765; see also Matter
of Camille H., 215 AD2d 143, 143-144). In any event, even assuming,
arguendo, that defendant was unlawfully detained, we conclude that his
criminal conduct in speeding off and almost striking the second
officer—conduct for which defendant was convicted of reckless
endangerment in the second degree—“severed any causal connection
between the unlawful detention and the subsequently-acquired evidence”
(People v May, 100 AD3d 1411, 1411, lv denied 20 NY3d 1063).

      Contrary to defendant’s contention, the evidence is legally
sufficient to support the conviction of criminal possession of a
weapon in the second degree and criminal possession of marihuana in
the third degree inasmuch as the evidence established that the bag
later found by the police had been possessed by and then discarded by
defendant during the chase (see generally People v Bleakley, 69 NY2d
490, 495). In addition, viewing the evidence in light of the elements
of those crimes as charged to the jury (see People v Danielson, 9 NY3d
342, 349), we conclude that the verdict is not against the weight of
the evidence with respect to them (see generally Bleakley, 69 NY2d at
495).

     We reject defendant’s contention that the court erred in denying
his request for a missing witness charge. The testimony of a third
officer involved in the police chase would have been cumulative (see
People v Santiago, 101 AD3d 1715, 1717, lv denied 21 NY3d 946; People
v Duda, 45 AD3d 1464, 1466, lv denied 10 NY3d 764; see generally
People v Gonzalez, 68 NY2d 424, 427). In any event, any error in
failing to give that charge is harmless inasmuch as the evidence of
defendant’s guilt is overwhelming, and there is no significant
probability that defendant would have been acquitted but for the
alleged error (see People v McCune, 210 AD2d 978, 979, lv denied 85
NY2d 864; see generally People v Crimmins, 36 NY2d 230, 241-242).
Finally, the sentence is not unduly harsh or severe.




Entered:   March 28, 2014                      Frances E. Cafarell
                                               Clerk of the Court
