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

928
KA 11-01336
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TYRELL D. SIMMONS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BRIDGET L. FIELD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered April 26, 2011. The judgment
convicted defendant, upon a jury verdict, of criminal possession of a
weapon in the second degree (two counts) and criminal possession of a
weapon in the third 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 two counts of criminal possession of a weapon
in the second degree (Penal Law § 265.03 [1] [b]; [3]) and one count
of criminal possession of a weapon in the third degree (§ 265.02 [1]).
Contrary to defendant’s contention, Supreme Court properly determined
that the police had probable cause to arrest him. The record
establishes that defendant was observed crossing a street by two
police officers who were part of a six-member tactical unit patrolling
a high-crime area in three vehicles. One officer testified that he
observed that the right front pocket of defendant’s sweatshirt hung
“dramatically lower” than the left front pocket and that there was a
“large object” protruding from the right pocket. The officer further
testified that, based upon his training and experience, he believed
that defendant had a weapon. Before the officer exited his vehicle,
he made eye contact with defendant, who cupped his hand around his
right pocket, “bladed his body” away from the officer at a 45-degree
angle, and walked diagonally away from the vehicle into a yard. When
the officer exited his vehicle, he addressed defendant by stating that
he wanted to talk to him “for a minute,” and defendant began to run.
After taking two steps, defendant pulled an object from the right
pocket of his sweatshirt, which the officer observed was a dark
object, and threw it. The officer testified that he “heard a distinct
metal sound clanging as [the object] hit the ground.” At that point,
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                                                           KA 11-01336

the officer began to run and, when he   observed that the object on the
ground was indeed a gun, he continued   to pursue defendant. The weapon
was secured by another officer of the   tactical unit, and defendant was
apprehended by a third officer of the   unit.

     Although each of defendant’s actions, “ ‘standing alone, could be
susceptible to an innocent interpretation, a view of the entire
circumstances’ gave the [police] a founded suspicion that criminality
was afoot, which invoked the common-law right to inquire” (People v
Gerard, 94 AD3d 592, 593 quoting People v Evans, 65 NY2d 629, 630).
The officer’s observation of the weapon on the ground, along “with the
attendant circumstances, gave rise to the requisite reasonable
suspicion justifying police pursuit” (People v Brown, 67 AD3d 1439,
1440, lv denied 14 NY3d 798). When the police recovered the weapon
that defendant had abandoned, they had probable cause to arrest him
(see People v Martinez, 80 NY2d 444, 448-449; People v Salamone, 61
AD3d 1400, 1401, lv denied 12 NY3d 929; People v Holland, 221 AD2d
947, 948, lv denied 87 NY2d 922).

     By failing to renew his motion to dismiss the indictment at the
close of proof, defendant failed to preserve for our review his
contention that the evidence is not legally sufficient to support the
conviction (see People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d
678; People v Mills, 93 AD3d 1198, 1199, lv denied 19 NY3d 964). In
any event, that contention is without merit. Defendant was observed
by police discarding what was determined to be an operable weapon
outside of his home or place of business (see Penal Law § 265.03 [3]),
and section 265.15 (4) “provides that ‘[t]he possession by any person
of any . . . weapon . . . is presumptive evidence of intent to use the
same unlawfully against another’ person” (People v Galindo, 23 NY3d
719, 722). We have reviewed the evidence in light of the elements of
the crimes as charged to the jury (see People v Danielson, 9 NY3d 342,
349), and we conclude, contrary to defendant’s contention, “that an
acquittal would have been unreasonable based upon the weight of the
credible evidence presented at trial, and thus the verdict is not
against the weight of the evidence” (People v Kreutter, 121 AD3d 1534,
1535-1536; see generally People v Bleakley, 69 NY2d 490, 495).

     Defendant failed to preserve for our review his contention that
the indictment is multiplicitous (see CPL 470.05 [2]; People v Quinn,
103 AD3d 1258, 1258, lv denied 21 NY3d 946). In any event, that
contention lacks merit inasmuch as each count of criminal possession
of a weapon in the second degree “requires proof of an additional fact
that the other does not” (People v Jefferson, 125 AD3d 1463, 1464, lv
denied 25 NY3d 990 [internal quotation marks omitted]; see generally
Galindo, 23 NY3d at 721-722). Defendant failed to object to the
court’s Sandoval ruling and thus failed to preserve for our review his
contention that the court abused its discretion in permitting the
People to use at trial defendant’s two prior misdemeanor convictions
(see People v Tolliver, 93 AD3d 1150, 1151, lv denied 19 NY3d 968),
and we decline to review that contention as a matter of discretion in
the interest of justice (see CPL 470.15 [6] [a]). Defendant failed to
object to any of the remarks by the prosecutor during summation, which
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                                                         KA 11-01336

he contends improperly vouched for the credibility of the People’s
witnesses, and thus failed to preserve for our review his contention
that he was denied a fair trial by prosecutorial misconduct (see
People v Cotto, 106 AD3d 1534, 1534). In any event, defendant’s
contention is without merit inasmuch as the prosecutor’s remarks were
a fair response to defendant’s summation (see id.).

     We reject defendant’s contention that defense counsel’s failure
to renew the motion to dismiss the indictment at the close of proof,
or to object to the Sandoval ruling and to the allegedly improper
remarks of the prosecutor during summation, deprived him of meaningful
representation. It is well established that “[a] defendant is not
denied effective assistance of . . . counsel merely because counsel
does not make a motion or argument that has little or no chance of
success” (People v Stultz, 2 NY3d 277, 287). Finally, the sentence is
not unduly harsh or severe.




Entered:   November 20, 2015                    Frances E. Cafarell
                                                Clerk of the Court
