SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

774 

KA 14-01506 

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

GLASCO P. ROZIER, DEFENDANT-APPELLANT. 

 

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (MICHAEL

J. HILLERY OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Erie County Court (Kenneth F. Case,

J.), rendered May 12, 2014. 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 reversed as a matter of discretion in the interest of

justice and on the law and a new trial is granted. 

Memorandum: Defendant appeals from a judgment convicting him

following a jury trial of criminal possession of a weapon in the

second degree (Penal Law § 265.03 [3]). The facts are largely

undisputed. On the evening of September 13, 2012, two officers of the

Buffalo Police Department were patrolling a high crime area on the

east side of the city when they saw a vehicle stop abruptly outside of

a house. Defendant exited the vehicle, looked several times at the

officers’ patrol car, and walked quickly towards the back of the

house. The officers suspected defendant of trespassing and quietly

followed him, approaching the house from different directions. They

lost sight of defendant for approximately 15 to 30 seconds. Defendant

suddenly emerged from behind the house, and one officer began

questioning him about his behavior. The other officer reported that

he had seen defendant “standing next to” a blue City of Buffalo

garbage tote located nearby. When one officer lifted the lid of the

garbage tote, defendant dropped his head and said, “oh man.” A loaded

gun was inside. Defendant was arrested and confessed to having

possessed the gun.

Defendant moved to suppress the gun and his statements to the

police, arguing that he abandoned the gun in response to unlawful

police pursuit and that he was arrested without probable cause. 

County Court held a suppression hearing at which the officers

testified to the foregoing facts, and defendant testified that he
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KA 14-01506 

abandoned the gun in the garbage tote before the officers caught up

with him. The court concluded that defendant had been arrested

without probable cause and suppressed any statements made after the

arrest; the court denied defendant’s motion, however, insofar as

defendant sought to suppress the gun. Defendant contends that the

latter ruling was error. We reject that contention. When the

officers followed defendant toward the back of the house, they “were

engaged merely in observation,” not pursuit (People v Foster, 302 AD2d

403, 404, lv denied 100 NY2d 581; see People v Feliciano, 140 AD3d

1776, 1777). That observation “was unobtrusive and did not limit the

defendant’s freedom of movement” (Feliciano, 140 AD3d at 1777; see

generally People v Howard, 50 NY2d 583, 592, cert denied 449 US 1023). 

The court thus properly determined that defendant’s abandonment of the

gun was not in response to unlawful police conduct (see Feliciano, 140

AD3d at 1777).

Contrary to defendant’s contention, we conclude that the

conviction is based on legally sufficient evidence (see generally

People v Bleakley, 69 NY2d 490, 495). In addition, 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 generally

Bleakley, 69 NY2d at 495).

We nonetheless agree with defendant’s contention that he was

denied a fair trial owing to prosecutorial misconduct. Although

defendant failed to preserve that contention for our review, we

exercise our power to review it as a matter of discretion in the

interest of justice (see CPL 470.15 [6] [a]). At trial, the People

presented testimony of a forensic expert to discuss DNA evidence

collected from the gun, but the testimony was not conclusive. The

expert testified that she analyzed the DNA mixture and determined that

defendant was among 1 in 15 Americans who could not be excluded as a

contributor. Nevertheless, on summation, the prosecutor grossly

exaggerated the DNA evidence as “overwhelming” proof establishing

defendant’s “guilt beyond all doubt” and posited: “If the defendant

had not possessed the gun, wouldn’t science have excluded him?” In

our view, the prosecutor’s flagrant distortion of the DNA evidence

caused defendant such substantial prejudice that he was denied due

process of law, particularly in light of the circumstantial nature of

the People’s case (see People v Jones, 134 AD3d 1588, 1589; see

generally People v Wright, 25 NY3d 769, 783). In light of the

foregoing, we agree with defendant’s related contention that he was

denied effective assistance of counsel owing to defense counsel’s

failure to object to the prosecutor’s misconduct during summation (see

Wright, 25 NY3d at 780-783).

In light of our determination, defendant’s challenge to the

severity of his sentence is academic.

Entered: October 7, 2016 Frances E. Cafarell

Clerk of the Court