                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 27, 2016                   106113
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

THOMAS FRANQUEIRA JR.,
                    Appellant.
________________________________


Calendar Date:   September 9, 2016

Before:   McCarthy, J.P., Egan Jr., Devine, Clark and Aarons, JJ.

                             __________


     William D. Robert, Albany, for appellant.

      Joel E. Abelove, District Attorney, Troy (Vincent J.
O'Neill of counsel), for respondent.

                             __________


Egan Jr., J.

      Appeal from a judgment of the County Court of Rensselaer
County (Ceresia, J.), rendered April 30, 2013, upon a verdict
convicting defendant of the crimes of criminal possession of a
weapon in the second degree (two counts) and menacing in the
second degree.

      Defendant was charged in a six-count indictment with three
counts of criminal possession of a weapon in the second degree,
two counts of menacing in the second degree and one count of
resisting arrest. The charges stemmed from an incident that
occurred on the evening of October 14, 2012 in the parking lot of
Popeye's Chicken on Hoosick Street in the City of Troy,
Rensselaer County. On the evening in question, a woman called
for a taxicab to transport her to that location – intending to
meet up with defendant. When the cab – then occupied by the
                              -2-                106113

woman, her two children, the cab driver and the driver's husband
– arrived at Popeye's, a disagreement arose between defendant and
the cab driver, during the course of which defendant produced
what was described as a silver handgun. Local police were
notified, a description of the assailant was transmitted and,
minutes later, defendant was stopped as he was observed running
through a nearby parking lot and was returned to the scene for a
showup identification. Both the cab driver and the driver's
husband identified defendant as their assailant, and a black and
silver handgun was recovered nearby.

      Following unsuccessful motions to suppress, among other
things, the pretrial showup identification, the matter proceeded
to trial in early March 2013. Defendant's first trial ended in a
mistrial but, at the conclusion of the second trial, defendant
was convicted of two counts of criminal possession of a weapon in
the second degree (counts 1 and 2 pertaining to the cab driver)
and one count of menacing in the second degree (count 3 as to the
cab driver) and was acquitted of those counts of the indictment
charging him with menacing in the second degree (count 4) and
criminal possession of a weapon in the second degree (original
count 6)1 as to the cab driver's husband. Defendant thereafter
was sentenced, as a second felony offender, to an aggregate term
of 10 years in prison followed by five years of postrelease
supervision. This appeal by defendant ensued.

      Initially, we agree with County Court that defendant was
properly stopped and detained pending the showup identification.
"Where a police officer reasonably suspects that a particular
person has committed, is committing or is about to commit a


    1
        Count 5 of the indictment – charging defendant with
resisting arrest – was dismissed prior to trial. In its charge
to the jury, however, County Court denominated the original count
6 of the indictment – charging defendant with criminal possession
of a weapon in the second degree as to the cab driver's husband –
as count 5. Hence, any subsequent references to count 5, whether
in County Court's charge or the parties' briefs on appeal, appear
to be to the original count 6 of the indictment.
                              -3-                106113

felony or misdemeanor, the CPL authorizes a forcible stop and
detention of that person" (People v Stroman, 107 AD3d 1023, 1023
[2013] [internal quotation marks and citations omitted], lv
denied 21 NY3d 1046 [2013]; see People v Godallah, 132 AD3d 1146,
1149 [2015]). "[A]n investigatory stop may be upheld if the
authorities knew that a crime actually had been committed, the
total period of the detention was brief, the police diligently
pursued a minimally intrusive means of investigation likely to
confirm or dispel suspicion quickly, during which time it was
necessary to detain the defendant and there is no proof of
significantly less intrusive means available to accomplish the
same purpose" (People v Mabeus, 68 AD3d 1557, 1561 [2009]
[internal quotation marks and citations omitted], lv denied 14
NY3d 842 [2010]; see People v Hicks, 68 NY2d 234, 242-243 [1986];
People v Dibble, 43 AD3d 1363, 1364-1365 [2007], lv denied 9 NY3d
1032 [2008]).

      The testimony adduced at the suppression hearing revealed
that Brandon Cipperly, a police officer with the City of Troy
Police Department, received a radio transmission advising of a
possible robbery at Popeye's Chicken on Hoosick Street. While en
route to the scene, Cipperly also received a description of the
suspect – "[a] light-skinned Hispanic male, longer, curlier hair,
dark or gray hooded sweatshirt, a lighter colored sweatshirt
underneath, either dark jeans or dark long or shorter jeans."
Cipperly further was advised that the suspect was last seen
running east on Hoosick Street and that "there was a possible
silver color handgun involved." Approximately 90 seconds later,
Cipperly approached the scene; when he was "[l]ess than 50 yards"
away from Popeye's Chicken, Cipperly encountered an individual
matching the description given – later identified as defendant –
running toward the patrol vehicle "in a full sprint" and with his
hands at his sides or in his pockets. Cipperly exited his patrol
vehicle with his weapon drawn, ordered defendant to the ground
and instructed defendant to show his hands. Defendant refused to
comply and continued advancing toward the patrol vehicle. When
defendant began slamming his hands on the hood of the vehicle,
Cipperly attempted to handcuff him, at which point defendant
tried to flee. After defendant was handcuffed, he smashed his
head on the pavement, stating his intention to sue the police
                              -4-                106113

department. Approximately three or four minutes later, two of
Cipperly's fellow officers separately transported the cab driver
and the driver's husband to the scene for purposes of a showup
identification, whereupon each immediately and unequivocally
identified defendant as the individual who had pulled a gun on
them.

      Defendant does not dispute that the showup identification
occurred in close temporal and geographic proximity to the scene
of the crime; rather, defendant argues that his detention ripened
into a full-blown arrest (for which the police purportedly lacked
probable cause) or, alternatively, that the showup identification
procedures were unduly suggestive. We disagree on both counts.
Contrary to defendant's assertion, his seizure, "made on the
basis of reasonable suspicion, was a brief investigative
detention for the purpose of prompt identification by the
victim[s], and the fact that the police [initially] detained
defendant at gunpoint and [thereafter] used handcuffs did not
transform the detention into an arrest requiring probable cause"
(People v Gatling, 38 AD3d 239, 239-240 [2007], lv denied 9 NY3d
865 [2007]; see People v Allen, 73 NY2d 378, 379-380 [1989];
People v Mabeus, 68 AD3d at 1560-1561; People v Medina, 37 AD3d
240, 242 [2007], lv denied 9 NY3d 847 [2007]; People v Williams,
305 AD2d 804, 806-807 [2003]). As to the actual showup
procedures, the identification occurred in a well-lit area within
minutes of – and in close proximity to – the scene of the crime,
and the mere fact that defendant was handcuffed and standing next
to police officers did not render the showup impermissibly
suggestive (see People v Bellamy, 118 AD3d 1113, 1116 [2014], lv
denied 25 NY3d 1159 [2015]; People v Mathis, 60 AD3d 1144, 1146
[2009], lv denied 12 NY3d 927 [2009]). Similarly, the fact that
officers advised the cab driver and the driver's husband that a
suspect fitting the description had been stopped did not
invalidate the showup, as this information "merely conveyed what
a witness of ordinary intelligence would have expected under the
circumstances" (People v Mathis, 60 AD3d at 1146 [internal
quotation marks and citations omitted]). In light of this
conclusion, we need not consider defendant's probable cause
argument.
                              -5-                106113

      Defendant next contends that the People failed to establish
a sufficient chain of custody for the handgun to permit its
introduction into evidence. Again, we disagree. "Real evidence
is admissible when it is sufficiently connected with the
defendant[] to be relevant to [the] issue in the case. If the
object [in question] was taken from the defendant or found at the
scene of the crime, the foundation is laid once it is shown that
the thing offered is the one recovered and that its condition is
substantially unchanged. The fact that it might have passed
through several hands . . . is of little significance when the
object possesses unique characteristics or markings and is not
subject to material alteration which is not readily apparent"
(People v Connelly, 35 NY2d 171, 174 [1974] [internal quotation
marks and citations omitted]; see People v Shoga, 89 AD3d 1225,
1226 [2011], lv denied 18 NY3d 886 [2012]; People v Weiler, 194
AD2d 894, 895 [1993], lv denied 82 NY2d 728 [1993]).

      Here, police officer Justin Ashe testified that he and two
other members of the Troy Police Department retraced defendant's
steps on the night in question; during the course of that search,
Ashe found "a black and silver Sig Sauer Mosquito handgun" lying
in a grassy area. Ashe radioed that he had located the handgun
and thereafter testified that he "stayed with the weapon until
[an evidence] box and camera" were brought to his location.
After Ashe photographed the weapon, Sergeant Raymond White
ejected the magazine, cleared a round from the chamber and placed
the gun, magazine and ejected round into an evidence box, which
Ashe retained until he turned the box over to Matthew Beaudoin,
an evidence technician. White's testimony mirrored Ashe's
account of the manner in which the gun was collected and placed
into the evidence box. Beaudoin, in turn, testified that he
received the evidence box containing the gun and ammunition from
Ashe and White and, upon examining the weapon, recorded the
serial number contained thereon. Beaudoin further testified that
the serial number that he recorded on the gun intake form matched
the serial number on the handgun that he was shown at trial.
Finally, both the property room coordinator and the officer who
test-fired the handgun identified the weapon at trial –
specifically, the property room coordinator identified the weapon
by matching the serial number written on a tag attached to the
                              -6-                106113

evidence box to the serial number contained on the weapon itself,
and the officer who test-fired the weapon identified the handgun
both by its serial number and by his initials, which he had
engraved upon the handgun's grip. Such proof, in our view, is
sufficient to establish a valid chain of custody for the weapon
(see People v Gamble, 135 AD3d 1078, 1080 [2016], lv denied 27
NY3d 997 [2016]; People v Shoga, 89 AD3d at 1226). Further,
inasmuch as the record as a whole "provide[s] reasonable
assurances of the identity and unchanged condition of the
[handgun]" (People v Hawkins, 11 NY3d 484, 494 [2008]), we are
satisfied that any gaps in that chain go to the weight to be
accorded such evidence, not its admissibility (see id. at 494;
People v Rolle, 72 AD3d 1393, 1396 [2010], lv denied 16 NY3d 745
[2011]). Accordingly, County Court did not err in permitting the
People to introduce the handgun into evidence.

      Nor are we persuaded that County Court abused its
discretion in denying defendant's motions for a mistrial based
upon prosecutorial misconduct. "Reversal of a conviction for
prosecutorial misconduct is warranted only where a defendant has
suffered substantial prejudice such that he [or she] was deprived
of due process of law" (People v McCombs, 18 AD3d 888, 890
[2005]; accord People v Newkirk, 75 AD3d 853, 857 [2010], lv
denied 16 NY3d 834 [2011]). "In determining whether
prosecutorial misconduct deprived a defendant of a fair trial,
this Court considers its severity and frequency, the corrective
action taken, if any, and whether the result would likely have
been the same in the absence of the conduct" (People v Wlasiuk,
136 AD3d 1101, 1103 [2016] [internal quotation marks and
citations omitted], lv denied 27 NY3d 1009 [2016]).

      Here, defendant cites two instances of alleged
prosecutorial misconduct – a reference during the People's
opening to the fact that there were "two little kids, two tiny,
small children" inside of the taxi when defendant displayed the
handgun and, further, a line of questioning directed at two
teardrop tattoos on defendant's face. As to the comment made
during the People's opening, defense counsel promptly objected
and moved for a mistrial – contending that the People
impermissibly made reference to an uncharged crime (endangering
                              -7-                106113

the welfare of a child). County Court denied that motion but
inquired as to whether defense counsel nonetheless wished for the
court to instruct the jury to disregard that portion of the
People's opening. Defense counsel, after twice being questioned
on this point, declined to take a position on the need for such
an instruction – leaving resolution of that issue to the
discretion of County Court – and no such instruction ultimately
was given. To the extent that defendant's argument on this point
has been preserved for our review, we find it to be lacking in
merit, as this isolated comment did not deprive defendant of a
fair trial (see People v Delaney, 42 AD3d 820, 822 [2007], lv
denied 9 NY3d 922 [2007]).

      We reach a similar conclusion with respect to the issue of
defendant's tattoos – namely, the implication that defendant had
attempted to conceal his tattoos from the jury. Defense counsel
unsuccessfully moved for a mistrial and, following much debate,
the parties stipulated that defendant had "two teardrop tattoos
under his left eye." County Court thereafter instructed the jury
"not to speculate or draw any conclusions as to what such tattoos
may mean" or "to consider those tattoos for any . . . reason"
other than the identification of defendant. In view of the
stipulation and resulting instructions to the jury, we again do
not find that this particular line of questioning operated to
deprive defendant of a fair trial.

      Finally, as to defendant's request for a missing witness
charge, we agree that defendant failed to demonstrate that the
requested witness could offer noncumulative, material testimony
(see e.g. People v Stokes, 141 AD3d 1032, 1034 [2016]).
Accordingly, County Court did not abuse its discretion in denying
defendant's request in this regard. Defendant's related request
– that County Court erred in failing to charge the jury with the
lesser included offense of criminal possession of a weapon in the
fourth degree as to counts 1, 2 and 5 of the indictment – is
equally lacking in merit.2 Initially, inasmuch as defendant was

    2
        As noted previously, count 5 of the indictment – charging
defendant with resisting arrest – was dismissed prior to trial,
and subsequent references thereto appear to refer to the original
                              -8-                106113

acquitted of the crime charged in count 5 of the indictment,
defendant's argument as to that particular count is moot (see
People v Adams, 50 AD3d 433, 434 [2008], lv denied 10 NY3d 955
[2008]; People v Moore, 35 AD3d 291, 292 [2006], lv denied 8 NY3d
988 [2007]). As to count 1 of the indictment, defendant was
charged with criminal possession of a weapon in the second degree
under Penal Law § 265.03 (1) (b) based upon the theory that he
possessed a loaded firearm; he requested that the jury be charged
with the lesser included offense of criminal possession of a
weapon in the fourth degree under Penal Law § 265.01 (2) –
contending that he possessed either an unloaded firearm or a
knife. Under count 2 of the indictment, defendant was charged
with criminal possession of a weapon in the second degree
pursuant to Penal Law § 265.03 (3) based upon the theory that he
possessed a loaded firearm outside of his home or place of
business; as to this count, defendant also requested that the
jury be charged with the lesser included offense of criminal
possession of a weapon in the fourth degree – this time relying
upon Penal Law § 265.01 (1) and arguing either that the firearm
was unloaded/inoperable, that he possessed such weapon in his
home or place of business or that the weapon in question actually
was a knife. County Court denied these requests finding, among
other things, that there was no reasonable view of the evidence
to support a finding that the handgun was unloaded or inoperable
or that defendant's possession of the handgun occurred in his
home or place of business.

      "To establish entitlement to a lesser included offense
charge, a defendant must demonstrate that, in all circumstances,
it is impossible to commit the greater crime without
concomitantly, by the same conduct, committing the lesser offense
and, secondarily, that there is a reasonable view of the evidence
that would support a finding that he or she committed the lesser
offense but not the greater" (People v Grayson, 138 AD3d 1250,
1251 [2016] [internal quotation marks, brackets, ellipsis and
citations omitted], lv denied 27 NY3d 1132 [2016]; see People
Seals, 135 AD3d 985, 986 [2016]). Beginning with defendant's
theory that he possessed a knife instead of a handgun, as County


count 6 of the indictment (see note 1, supra).
                              -9-                  106113

Court aptly observed, possession of a knife is not an element of
criminal possession of a weapon in the second degree under Penal
Law § 265.03. Accordingly, as defendant could have committed
criminal possession of a weapon in the second degree without
concomitantly committing criminal possession of a weapon in the
fourth degree under the cited subdivision (Penal Law § 265.01
[2]), the latter did not constitute a lesser included offense of
the former. As to the balance of defendant's argument on this
point, we agree with County Court that there is no reasonable
view of the evidence that the firearm was unloaded or inoperable
(see People v Marrero, 187 AD2d 281, 281 [1992], lv denied 81
NY2d 791 [1993]), nor is there any reasonable view of the
evidence that defendant possessed the handgun in his home or
place of business (compare People v Verni, 127 AD3d 887, 888
[2015], lv denied 25 NY3d 1209 [2015]). Accordingly, County
Court properly denied defendant's request to charge in this
regard. Defendant's remaining contentions, including his
assertion that County Court impermissibly curtailed his
examination of certain witnesses, have been examined and found to
be lacking in merit.

     McCarthy, J.P., Devine, Clark and Aarons, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
