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

774
KA 14-01506
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GLASCO P. ROZIER, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (MICHAEL
J. HILLERY OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Kenneth F. Case,
J.), rendered May 12, 2014. 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 reversed as a matter of discretion in the interest of
justice and on the law and a new trial is granted.

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of criminal possession of a weapon in the
second degree (Penal Law § 265.03 [3]). The facts are largely
undisputed. On the evening of September 13, 2012, two officers of the
Buffalo Police Department were patrolling a high crime area on the
east side of the city when they saw a vehicle stop abruptly outside of
a house. Defendant exited the vehicle, looked several times at the
officers’ patrol car, and walked quickly towards the back of the
house. The officers suspected defendant of trespassing and quietly
followed him, approaching the house from different directions. They
lost sight of defendant for approximately 15 to 30 seconds. Defendant
suddenly emerged from behind the house, and one officer began
questioning him about his behavior. The other officer reported that
he had seen defendant “standing next to” a blue City of Buffalo
garbage tote located nearby. When one officer lifted the lid of the
garbage tote, defendant dropped his head and said, “oh man.” A loaded
gun was inside. Defendant was arrested and confessed to having
possessed the gun.

     Defendant moved to suppress the gun and his statements to the
police, arguing that he abandoned the gun in response to unlawful
police pursuit and that he was arrested without probable cause.
County Court held a suppression hearing at which the officers
testified to the foregoing facts, and defendant testified that he
                                 -2-                           774
                                                         KA 14-01506

abandoned the gun in the garbage tote before the officers caught up
with him. The court concluded that defendant had been arrested
without probable cause and suppressed any statements made after the
arrest; the court denied defendant’s motion, however, insofar as
defendant sought to suppress the gun. Defendant contends that the
latter ruling was error. We reject that contention. When the
officers followed defendant toward the back of the house, they “were
engaged merely in observation,” not pursuit (People v Foster, 302 AD2d
403, 404, lv denied 100 NY2d 581; see People v Feliciano, 140 AD3d
1776, 1777). That observation “was unobtrusive and did not limit the
defendant’s freedom of movement” (Feliciano, 140 AD3d at 1777; see
generally People v Howard, 50 NY2d 583, 592, cert denied 449 US 1023).
The court thus properly determined that defendant’s abandonment of the
gun was not in response to unlawful police conduct (see Feliciano, 140
AD3d at 1777).

     Contrary to defendant’s contention, we conclude that the
conviction is based on legally sufficient evidence (see generally
People v Bleakley, 69 NY2d 490, 495). In addition, viewing the
evidence in light of the elements of the crime 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 (see generally
Bleakley, 69 NY2d at 495).

     We nonetheless agree with defendant’s contention that he was
denied a fair trial owing to prosecutorial misconduct. Although
defendant failed to preserve that contention for our review, we
exercise our power to review it as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]). At trial, the People
presented testimony of a forensic expert to discuss DNA evidence
collected from the gun, but the testimony was not conclusive. The
expert testified that she analyzed the DNA mixture and determined that
defendant was among 1 in 15 Americans who could not be excluded as a
contributor. Nevertheless, on summation, the prosecutor grossly
exaggerated the DNA evidence as “overwhelming” proof establishing
defendant’s “guilt beyond all doubt” and posited: “If the defendant
had not possessed the gun, wouldn’t science have excluded him?” In
our view, the prosecutor’s flagrant distortion of the DNA evidence
caused defendant such substantial prejudice that he was denied due
process of law, particularly in light of the circumstantial nature of
the People’s case (see People v Jones, 134 AD3d 1588, 1589; see
generally People v Wright, 25 NY3d 769, 783). In light of the
foregoing, we agree with defendant’s related contention that he was
denied effective assistance of counsel owing to defense counsel’s
failure to object to the prosecutor’s misconduct during summation (see
Wright, 25 NY3d at 780-783).

     In light of our determination, defendant’s challenge to the
severity of his sentence is academic.


Entered:   October 7, 2016                      Frances E. Cafarell
                                                Clerk of the Court
