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

155
KA 15-00323
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL NANCE, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

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


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), entered January 8, 2015. 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 affirmed.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of criminal possession of a weapon in the second degree (Penal
Law § 265.03 [3]), defendant contends that Supreme Court erred in
refusing to suppress the handgun seized from him by Buffalo police
officers. We reject that contention.

     “It is well established that, in evaluating the legality of
police conduct, we ‘must determine whether the action taken was
justified in its inception and at every subsequent stage of the
encounter’ ” (People v Howard, 129 AD3d 1654, 1655, lv denied 27 NY3d
999; see generally People v De Bour, 40 NY2d 210, 215). Here,
contrary to defendant’s contention, the court properly concluded that
each step in the officers’ interactions with defendant was justified.
The evidence from the suppression hearing establishes that two
officers in a police vehicle initially observed defendant as he walked
across a lawn in a high-crime neighborhood. At that time, the
officers looked at defendant but took no action. Upon observing the
officers, defendant’s eyes widened, he changed direction so that he
would pass behind one of the two police vehicles at the scene, and he
said aloud that the officers were looking at him as if he had done
something wrong. As he passed the officers, defendant took his left
hand out of the pocket of his jeans, and they noticed that he was
wearing a black latex glove on that hand but had no glove on the other
hand, and that he had a bulge in his left pocket. Based on their
                                 -2-                           155
                                                         KA 15-00323

observations, the officers suspected that defendant had a handgun. As
the officers moved their vehicle into defendant’s path of travel,
defendant began to run and, as he slid or jumped over the hood of
their vehicle, he dropped a black handgun. An officer from the second
police vehicle apprehended defendant, and another officer from that
vehicle recovered the handgun. After the police gave him Miranda
warnings, defendant admitted to possessing the handgun.

     It is well settled that a “defendant’s flight in response to an
approach by the police, combined with other specific circumstances
indicating that the suspect may be engaged in criminal activity, may
give rise to reasonable suspicion, the necessary predicate for police
pursuit” (People v Sierra, 83 NY2d 928, 929; see People v Crisler, 81
AD3d 1308, 1309, lv denied 17 NY3d 793). We conclude under the
circumstances of this case that the police officers had the requisite
reasonable suspicion to pursue and detain defendant after they made
the observations discussed above and defendant fled upon the approach
of the officers (see People v Haynes, 115 AD3d 676, 676; People v
Britt, 67 AD3d 1023, 1024, lv denied 14 NY3d 770; People v Cruz, 14
AD3d 730, 731-732, lv denied 4 NY3d 852; People v Fajardo, 209 AD2d
284, 284, lv denied 84 NY2d 1031). Furthermore, after the officers
seized defendant and recovered the weapon, they had probable cause to
arrest him (see People v Leung, 68 NY2d 734, 736-737).

     Defendant failed to preserve for our review his contention that
the conviction is not supported by legally sufficient evidence
inasmuch as he failed to make a sufficiently specific motion for a
trial order of dismissal at the close of the People’s case (see People
v Gray, 86 NY2d 10, 19). In any event, we reject defendant’s
contention that the conviction is not supported by legally sufficient
evidence (see generally People v Bleakley, 69 NY2d 490, 495) and,
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
Bleakley, 69 NY2d at 495).

      Defendant failed to preserve for our review his contention that
the court erred in permitting the prosecution to introduce evidence
indicating that a mixture of DNA from several people was found on the
handgun, and that defendant could not be excluded as a contributor to
that mixture. In any event, that contention is without merit. It is
well settled that “all relevant evidence is admissible unless its
admission violates some exclusionary rule . . . Evidence is considered
relevant if it has any tendency in reason to prove the existence of
any material fact” (People v Nicholson, 26 NY3d 813, 829 [internal
quotation marks omitted]). Consequently, the fact that defendant
could not be excluded as a contributor to the DNA recovered from the
handgun is admissible (see People v Lipford, 129 AD3d 1528, 1530, lv
denied 26 NY3d 1041; People v Roosevelt, 125 AD3d 1452, 1454, lv
denied 25 NY3d 1076; People v Pope, 96 AD3d 1231, 1234, lv denied 20
NY3d 1064; People v Schouenborg, 42 AD3d 473, 474, lv denied 9 NY3d
926).
                                 -3-                              155
                                                            KA 15-00323

     Defendant failed to preserve for our review his contention that
he was deprived of a fair trial by prosecutorial misconduct during
summation inasmuch as he failed to object to the alleged misconduct
(see People v Paul, 78 AD3d 1684, 1684-1685, lv denied 16 NY3d 834;
People v Smith, 32 AD3d 1291, 1292, lv denied 8 NY3d 849). In any
event, we conclude that any impropriety was not “ ‘so pervasive or
egregious as to deprive defendant of a fair trial’ ” (People v
Johnson, 303 AD2d 967, 968, lv denied 100 NY2d 583).

     We reject defendant’s further contention that he was deprived of
a fair trial by ineffective assistance of counsel. With respect to
defendant’s claim that defense counsel was ineffective in failing to
move to preclude the DNA evidence, we conclude that “[d]efendant
failed to demonstrate that such a motion would have been meritorious,
and there is no denial of effective assistance based on the failure to
make a motion or argument that has little or no chance of success”
(People v Jackson, 108 AD3d 1079, 1080, lv denied 22 NY3d 997
[internal quotation marks omitted]). Defendant’s further challenge to
the assistance provided by defense counsel is without merit. It is
well settled that “[a] defendant receives effective assistance of
counsel [where, as here,] the evidence, the law, and the circumstances
of a particular case, viewed in totality and as of the time of the
representation, reveal that the attorney provided meaningful
representation” (People v Speaks, 28 NY3d 990, 992 [internal quotation
marks omitted]).

     Finally, the sentence is not unduly harsh or severe.




Entered:   March 24, 2017                       Frances E. Cafarell
                                                Clerk of the Court
