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

1161
KA 14-01968
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARSHALL DANIELS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.

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


     Appeal from a judgment of the Erie County Court (Michael F.
Pietruszka, J.), rendered July 21, 2014. The judgment convicted
defendant, upon a nonjury verdict, of criminal possession of a weapon
in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon a
nonjury verdict of criminal possession of a weapon in the second
degree (Penal Law § 265.03 [3]), defendant contends that County Court
erred in refusing to suppress the gun that he discarded while he was
being pursued by the police, as well as statements that he made to the
police after his arrest. We reject that contention.

     “ ‘Great weight must be accorded to the determination of the
suppression court because of its ability to observe and assess the
credibility of the witnesses, and its findings should not be disturbed
unless clearly erroneous or unsupported by the hearing evidence’ ”
(People v Johnson, 138 AD3d 1454, 1454, lv denied 28 NY3d 931; see
People v Layou, 134 AD3d 1510, 1511, lv denied 27 NY3d 1070,
reconsideration denied 28 NY3d 932). At the suppression hearing, two
police officers testified that they were traveling in a marked patrol
vehicle on a warm summer day when they observed defendant walking down
the street wearing black gloves. When the officer who was operating
the vehicle slowed down, defendant turned and looked at the vehicle,
and he then pulled out a gun and started to run. The officer stopped
the vehicle, and the other officer exited the vehicle, pursued
defendant on foot, and observed defendant throw the gun toward a
house. Eventually, defendant was apprehended and a loaded gun was
recovered from the lawn outside the house.
                                 -2-                          1161
                                                         KA 14-01968

     We conclude that the presence of a gun on defendant’s person
combined with his flight gave the police “ ‘reasonable suspicion that
defendant may have been engaged in criminal activity justifying police
pursuit’ ” (People v Wilson, 49 AD3d 1224, 1224, lv denied 10 NY3d
966; see People v Knight, 94 AD3d 1527, 1529, lv denied 19 NY3d 998).
Defendant’s abandonment of the gun during that pursuit provided the
police with probable cause for defendant’s arrest (see People v
Gayden, 126 AD3d 1518, 1518-1519, affd 28 NY3d 1035; Wilson, 49 AD3d
at 1224-1225), and their recovery of the abandoned gun was lawful
inasmuch as the pursuit of defendant was lawful (see Gayden, 126 AD3d
at 1519). Furthermore, because the officers’ conduct was lawful, the
court properly refused to suppress as fruit of the poisonous tree the
oral statements defendant made to the police after his arrest (see
People v Sims, 106 AD3d 1473, 1474, appeal dismissed 22 NY3d 992).

     We also reject defendant’s contention that the conviction is not
supported by legally sufficient evidence because of breaks in the
chain of custody of the gun recovered from the lawn of the house. It
is well settled that “breaks in the chain of custody affect only the
weight to be given to that evidence” (People v Craven, 48 AD3d 1183,
1185, lv denied 10 NY3d 861; see People v Brown-Fort, 13 AD3d 731,
732; see generally People v Jefferson, 125 AD3d 1463, 1464, lv denied
25 NY3d 990). Viewing the evidence in light of the elements of the
crime in this nonjury trial (see People v Danielson, 9 NY3d 342, 349),
we further conclude that the verdict is not against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495).
Finally, the sentence is not unduly harsh or severe.




Entered:   February 3, 2017                     Frances E. Cafarell
                                                Clerk of the Court
