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

821
KA 13-00582
PRESENT: PERADOTTO, J.P., CARNI, DEJOSEPH, NEMOYER, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RICHARD L. DAVIS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (WILLIAM CLAUSS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Victoria M.
Argento, J.), rendered January 31, 2013. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a weapon in
the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice by reducing the sentence to a determinate term of
incarceration of seven years and as modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him,
upon a jury verdict, of criminal possession of weapon in the second
degree (Penal Law § 265.03 [3]). County Court sentenced defendant to
a 12-year term of incarceration plus five years of postrelease
supervision. We reject defendant’s contention that the court erred in
summarily denying that part of his omnibus motion seeking to suppress,
as the products of an unlawful search and seizure, a gun that
defendant had discarded while he was fleeing from the police and his
subsequent statements to the police. It is well settled that a motion
to suppress evidence on such a ground may be summarily denied if
defendant does not allege a proper legal basis for suppression or if
the “sworn allegations of fact do not as a matter of law support the
ground alleged” (CPL 710.60 [3] [b]; see People v Mendoza, 82 NY2d
415, 421). “Hearings are not automatic or generally available for the
asking by boilerplate allegations. Rather, . . . factual sufficiency
[is to] be determined with reference to the face of the pleadings, the
context of the motion and defendant’s access to information” (Mendoza,
82 NY2d at 422; see People v Jones, 95 NY2d 721, 725).

     Here, defendant failed to include in his motion papers sworn
allegations of fact taking issue with the People’s assertion that the
attempted stop of defendant was predicated on the officers’
                                 -2-                           821
                                                         KA 13-00582

observation that he was riding a bicycle without a bell or other
audible signal device, in violation of Vehicle and Traffic Law § 1236
(b) (see generally People v Robinson, 97 NY2d 341, 348-349; People v
Ingle, 36 NY2d 413, 419-420). Moreover, despite being afforded the
opportunity to supplement his motion papers, defendant also failed to
address the People’s assertions that the officers’ subsequent pursuit
and arrest of defendant was lawful given that defendant, upon being
approached by the officers, dropped his bicycle and fled through some
adjoining residential yards, thereby elevating the suspicion of the
police; that, during the ensuing lawful pursuit by the police,
defendant discarded the gun that he was carrying, thereby abandoning
the gun for the purpose of Fourth Amendment analysis; and that the
police, almost immediately after apprehending and detaining defendant
for the traffic violation, discovered and seized the gun, thereby
acquiring probable cause to arrest defendant (see generally People v
Sierra, 83 NY2d 928, 929-930; People v Martinez, 80 NY2d 444, 447-448;
People v Simmons, 133 AD3d 1275, 1276-1277, lv denied 27 NY3d 1006;
People v Wilson, 49 AD3d 1224, 1224-1225, lv denied 10 NY3d 966).
Inasmuch as defendant and his counsel merely set forth conclusory
allegations of defendant’s lawful behavior and of the absence of any
justification for the police to stop, pursue, and arrest defendant,
the defense failed to raise any factual issue requiring a suppression
hearing (see Mendoza, 82 NY2d at 426-433; People v King, 137 AD3d
1572, 1573, lv denied 27 NY3d 1134; People v Battle, 109 AD3d 1155,
1157, lv denied 22 NY3d 1038; People v Caldwell, 78 AD3d 1562, 1563,
lv denied 16 NY3d 796).

     We agree with defendant, however, that the imposition of a
determinate term of incarceration of 12 years is unduly harsh and
severe under the circumstances of this case. We note that our
“sentence-review power may be exercised, if the interest of justice
warrants, without deference to the sentencing court” (People v
Delgado, 80 NY2d 780, 783), and that we may “substitute our own
discretion for that of a trial court which has not abused its
discretion in the imposition of a sentence” (People v Suitte, 90 AD2d
80, 86; see People v Johnson, 136 AD3d 1417, 1418, lv denied 27 NY3d
1134). We conclude that a reduction in the sentence is appropriate
and, as a matter of our discretion in the interest of justice, we
modify the judgment by reducing the sentence to a determinate term of
incarceration of seven years (see CPL 470.20 [6]; Johnson, 136 AD3d at
1418), to be followed by the five years of postrelease supervision
imposed by the court.




Entered:   September 30, 2016                  Frances E. Cafarell
                                               Clerk of the Court
