THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v JOSEPH DURHAM, Appellant.
Appellate Division of the Supreme Court of New York, Third Department
January 12, 2017
[44 NYS3d 613]
Clark, J.
Clark, J. Appeal from a judgment of the County Court of Rensselaer County (Ceresia, J.), rendered July 5, 2012, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the second degree and reckless endangerment in the first degree.
On April 29, 2011, at approximately 5:30 p.m., two police officers and a K-9 dog pursued defendant on foot after he exited the front passenger side of a vehicle that was subject to a lawful traffic stop. During the pursuit, a firearm was discharged three times in the direction of one of the police officers. Defendant was ultimately apprehended and arrested by law enforcement and he was thereafter charged with attempted murder in the first degree, two counts of criminal possession of a weаpon in the second degree and reckless endangerment in the first degree. Following a jury trial, defendant was convicted of criminal possession of a weapon in the second degree and reckless
Defendant argues that County Court should have suppressed physical evidence, as well as a statement that he made to police following his apprehension, on the basis that the pоlice did not have the requisite reasonable suspicion of criminal activity to lawfully pursue him once he fled. “Police pursuit of an individual ‘significantly impede[s]’ the person‘s freedom of movement and thus must be justified by reasonable suspicion that a crime has been, is being, or is about to be committed” (People v Holmes, 81 NY2d 1056, 1057-1058 [1993], quoting People v Martinez, 80 NY2d 444, 447 [1992]). “Flight alone, even if accompanied with equivocal circumstances that would justify a police request for information, does not establish reasonable suspicion of criminality and is insufficient to justify pursuit, although it may give rise to reasonable suspicion if combined with other specific circumstances indicating the suspect‘s possible engagement in criminal activity” (People v Reyes, 69 AD3d 523, 525-526 [2010], appeal dismissed 15 NY3d 863 [2010]; see People v Pines, 99 NY2d 525, 527 [2002]; People v Holmes, 81 NY2d at 1058; People v Smith, 140 AD3d 1396, 1397 [2016], lv denied 28 NY3d 936 [2016]).
Here, while on patrol in a marked K-9 police vehicle, two police officers initiated a lawful traffic stop after they observed a vehicle that did not have a license plate affixеd to the front bumper but instead was displayed on the dashboard in an inconspicuous manner (see
Both officers testified that, during their ongoing attempt to stop the vehicle, they observed an individual seated in the front passenger seat “leaning forward as if he was going for the glove compartment area or thе floor” and moving about in a manner that, because they could not see his hands, led them to believe that the individual may have been retrieving or secreting something. The vehicle eventually slowed and pulled toward the curb, at which point the individual exited the front passenger door, looked in the officers’ direction, making brief eye contact, “reached down towards his waistband as if he was holding something” and fled, ignoring the officers’ directions to stop. The officers each testified that they immediately recognized the individual to be defendant, who they knew was a person of interest in the recent shootings and a suspect in at least one of those shоotings. Further, one of the officers testified that, because firearms are ordinarily carried on a person‘s waistband and given defendant‘s alleged involvement in the recent shootings, he feared that defendant was сarrying a gun. As the situation unfolded, the officers developed a reasonable suspicion that defendant was engaged in criminal activity—that is, the unlawful possession of a weapon—and thus they were justified in pursuing defendant and releasing the K-9 dog to assist in their efforts to stop and detain him (see People v Pines, 99 NY2d at 526-527; People v Curtis, 29 AD3d 316, 317 [2006], lv denied 7 NY3d 866 [2006]; People v Rivera, 286 AD2d 235, 235-236 [2001], lv denied 97 NY2d 760 [2002]). Although defendant raised issues as to the officers’ credibility, we defer to County Court‘s determination to credit their testimony (see People v Belle, 74 AD3d 1477, 1479 [2010], lv denied 15 NY3d 918 [2010]; People v Harper, 73 AD3d 1389, 1389 [2010], lv denied 15 NY3d 920 [2010]). Therefore, County Court properly denied defendant‘s suppression motion. Furthermore, defendant did not preserve his contention that law enforcement used excessive force to stop and detain him, as he failed to raise it in his omnibus mоtion or at the suppression hearing (see People v Price, 112 AD3d 1345, 1345-1346 [2013]; People v Gomez, 193 AD2d 882, 883 [1993], lv denied 82 NY2d 708 [1993]).
Defendant also contends that his convictions were not supported by legally sufficient evidence and were against the
With respect to the charge of criminal possession of a weapon in the second degree, the People were required to prove that defendant possessеd a loaded firearm outside of his home or place of business (see
At trial, one of the police officers testified that, during thе pursuit, defendant, followed by the K-9 dog, rounded the corner of a building and that, given the officer‘s training, he stopped at the corner and proceeded cautiously around it. He stated that he was roughly 15 feet behind the K-9 dog at the time that he stopped and that, “[a]s [he] peered . . . out from the corner, [he] heard [gun]shots ring out ... in [his] direction.” The officer stated that, although he did not see the gun at the moment that it was discharged, once he rounded the corner he saw smoke, noticed the smell that accompanied the discharge
While the officer closest to defendant and the K-9 dog testified that he beliеved that the gunshots were intended for the K-9 dog, the mens rea element of reckless endangerment in the first degree does not require proof that a defendant intended to shoot at another person; it requires prоof that, with “‘utter disregard for the value of human life‘” (People v Feingold, 7 NY3d 288, 296 [2006], quoting People v Suarez, 6 NY3d 202, 214 [2005]), he or she was “aware of and consciously disregard[ed] a substantial and unjustifiable risk that [a] result w[ould] occur or that [a particular] circumstance exist[ed]” and that the disrеgard of this risk “constitute[d] a gross deviation from the standard of conduct that a reasonable person would [have] observe[d] in the situation” (
Lastly, we are unpersuaded by defendant‘s sentencing challenges. Cоunty Court lawfully imposed consecutive sentences on defendant‘s convictions, as the trial evidence demonstrated that he knowingly and unlawfully possessed a loaded firearm before he opened fire (see People v Brown, 21 NY3d 739, 749-752 [2013]; People v Mitchell, 118 AD3d 1417, 1418-1419 [2014], lv denied 24 NY3d 963 [2014]; People v Rodriguez, 118 AD3d 451, 452 [2014], lv denied 24 NY3d 964 [2014]). Furthermore, considering defendant‘s criminal history and that his conduct evinced a complete disregard for public safety and endangered the law enforcement officers involved in his pursuit, County Court‘s imposition of the mаximum permissible sentence was not an abuse of discretion and we discern no extraordinary circumstances that would warrant a reduction of defendant‘s sentence (see People v Mann, 63 AD3d at 1374; People v Ryan, 46 AD3d 1125, 1128 [2007], lv denied 10 NY3d 939 [2008]).
To the extent that any of defendant‘s contentions have not been expressly addressed herein, they have been examined and found to be without merit.
Garry, J.P., Egan Jr., Devine and Mulvey, JJ., concur.
Ordered that the judgment is affirmed.