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

500
KA 11-00352
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

IKEEM MITCHELL, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN MCDERMOTT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Anthony F.
Aloi, J.), rendered October 28, 2010. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree and
criminal possession of a weapon 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 murder in the second degree (Penal Law § 125.25
[1]) and criminal possession of a weapon in the second degree (§
265.03 [3]). Defendant contends that he was illegally stopped by the
police and, thus, that County Court erred in refusing to suppress the
handgun seized by the police from his person and his subsequent
statements to the police. We reject that contention. “[T]he police
may forcibly stop or pursue an individual if they have information
which, although not yielding the probable cause necessary to justify
an arrest, provides them with a reasonable suspicion that a crime has
been, is being, or is about to be committed” (People v Martinez, 80
NY2d 444, 447; see People v Austin, 38 AD3d 1246, 1248, lv denied 8
NY3d 981). “Reasonable suspicion is the quantum of knowledge
sufficient to induce an ordinarily prudent and cautious [person] under
the circumstances to believe criminal activity is at hand” (People v
Cantor, 36 NY2d 106, 112-113; see People v Woods, 98 NY2d 627, 628;
Martinez, 80 NY2d at 448). Here, the evidence before the suppression
court established that the police sergeant was entitled to stop
defendant forcibly because he had a reasonable suspicion that
defendant was involved in the shooting of a man that had been recently
reported. Defendant matched the description given by a witness at the
crime scene, who described the suspect as a short black male wearing
an oversized black hoodie. The witness also indicated that the
suspect fled the crime scene on foot in an easterly direction. Within
                                 -2-                           500
                                                         KA 11-00352

10 minutes of the report of the shooting, the police sergeant observed
defendant walking in that direction from the area of the shooting, and
defendant and his clothing matched the description given by the
witness. The police sergeant observed that the “voluminous” hoodie
worn by defendant hung to his knees and made him appear short. The
police sergeant also noted that defendant repeatedly looked behind him
to see if he was being followed. We therefore conclude that the
police sergeant had the requisite reasonable suspicion that criminal
activity was at hand to justify the forcible stop of defendant. In
answer to questions from the police sergeant, defendant admitted that
he was coming from the area of the shooting and that he had a gun in
his pocket, which the police sergeant subsequently lawfully seized
(see People v Jackson, 72 AD2d 149, 152). Recovery of the gun from
defendant’s person, in addition to the other information known by the
police sergeant, provided probable cause for defendant’s arrest.
Defendant was thereafter taken to police headquarters, where he waived
his Miranda rights and made inculpatory statements.

     Viewing the evidence in light of the elements of the crime of
murder in the second degree as charged to the jury (see People v
Danielson, 9 NY3d 342, 349), we reject defendant’s contention that the
verdict is against the weight of the evidence with respect to the
element of intent (see generally People v Bleakley, 69 NY2d 490, 495).
We conclude that a different finding by the jury, i.e., a finding that
defendant acted without intent to kill the victim, would have been
unreasonable (see generally id.; People v Garrett, 88 AD3d 1253, 1253-
1254, lv denied 18 NY3d 883). In his statements to the police,
defendant admitted that he shot the victim intentionally in
retaliation for the shooting of his friend the previous day.
Furthermore, the evidence at trial established that the victim was
shot three times at a close range, indicating an intent to kill (see
generally People v Payne, 3 NY3d 266, 272).

     We reject defendant’s contention that the imposition of
consecutive sentences for the two crimes is illegal inasmuch as the
evidence adduced at trial established that his unlawful possession of
the gun was a criminal act separate and distinct from his shooting of
the victim (see People v Brown, 21 NY3d 739, 751). Finally,
defendant’s sentence is not unduly harsh or severe, and we see no
basis for reducing it.




Entered:   June 20, 2014                        Frances E. Cafarell
                                                Clerk of the Court
