State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 18, 2015 105473 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

RASHAN L. MITCHELL,

Appellant.

________________________________

Calendar Date: April 30, 2015

Before: Lahtinen, J.P., Garry, Egan Jr. and Rose, JJ.

__________

Neal D. Futerfas, White Plains, for appellant.

D. Holley Carnright, District Attorney, Kingston (Joan

Gudesblatt Lamb of counsel), for respondent.

__________

Rose, J.

Appeal from a judgment of the County Court of Ulster County

(Williams, J.), rendered August 3, 2012, upon a verdict

convicting defendant of the crimes of criminal possession of a

weapon in the second degree and criminal possession of a weapon

in the third degree.

Defendant was charged with criminal possession of a weapon

in both the second and third degrees after a loaded revolver was

found lying beneath him on the ground when he was apprehended by

police officers who had been surveilling an illegal drug

transaction. He was convicted as charged and County Court

sentenced him to an aggregate prison term of 15 years plus five

years of postrelease supervision. He now appeals. 
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Initially, we cannot agree with defendant's contention that

the statutes with which he was charged are unconstitutional (see

Penal Law §§ 265.02 [1]; 265.03 [3]). As we have previously

held, "Penal Law article 265 does not effect a complete ban on

handguns and is, therefore, not a 'severe restriction' improperly

infringing upon defendant's Second Amendment rights'" (People v

Perkins, 62 AD3d 1160, 1161 [2009], lvs denied 13 NY3d 748

[2009], quoting District of Columbia v Heller, 554 US 570, 629

[2008]; see People v Hughes, 83 AD3d 960, 961-962 [2011], affd 22

NY3d 44 [2013]). 

Nor can we agree that defendant's motion to suppress the

weapon as the result of an unlawful seizure should have been

granted. Police detectives testified that, while they were

performing radio and video surveillance of a confidential

informant (hereinafter the CI) and an undercover officer

attempting to purchase narcotics in an area known for its drug

activity, they observed defendant acting as a lookout during the

transaction. Defendant was dressed in a similar manner to his

two male companions and, according to a detective, drug dealers

often dress in a similar manner in order to make an accurate

description more difficult. After the CI and the undercover

officer confirmed that narcotics had been purchased from one of

defendant's companions and provided a description, detectives

approached defendant's group as they walked away and ordered them

to stop and put up their hands. Although defendant initially

complied, he then turned, reached his hand toward the back of his

waist and started running. The police chased defendant until he

fell while attempting to go over a fence. Seeing something black

in defendant's hands, a detective jumped on top of him, pinning

defendant to the ground with his hands beneath his body. After

defendant was subdued, a loaded black revolver was found on the

ground beneath him. 

A reasonable suspicion that a particular individual was

involved in a crime is required in order to justify a forcible

detention (see People v De Bour, 40 NY2d 210, 223 [1976]).

Contrary to defendant's argument, he was not approached and

ordered to stop merely because of his presence in a high-crime

area. Rather, his manner of dress and conduct gave detectives

reasonable suspicion to believe that he had been part of the drug
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transaction engaged in by the CI, thus justifying their initial

approach and subsequent pursuit (see People v Woods, 98 NY2d 627,

628 [2002]; People v Sierra, 83 NY2d 928, 930 [1994]; People v

Martinez, 80 NY2d 444, 448 [1992]). According weight to County

Court's ability to observe the witnesses and view the

surveillance video (see People v Prochilo, 41 NY2d 759, 761

[1977]; People v Morris, 105 AD3d 1075, 1077 [2013], lv denied 22

NY3d 1042 [2013]), we perceive no basis to disturb the court's

determination to deny the suppression motion (see People v Ford,

110 AD3d 1368, 1371 [2013], lv denied 24 NY3d 1043 [2014]; People

v Davenport, 92 AD3d 689, 690-691 [2012], lv dismissed 19 NY3d

959 [2012]). 

Although defendant also contends that the prosecutor's

remarks during summation improperly shifted the burden of proof,

defendant did not object to the summation and, thus, this issue

is not preserved for our review (see People v VanVorst, 118 AD3d

1035, 1037 [2014]; People v Reichel, 110 AD3d 1356, 1364 [2013],

lv denied 22 NY3d 1090 [2014]). Were we to consider it, we would

agree that the prosecutor impermissibly commented that defendant

offered no evidence to explain why his DNA was on the handgun and

should not have suggested that to believe defendant would require

believing that the police officers risked their jobs to frame

him. Nevertheless, we would not find a "flagrant and pervasive

pattern of prosecutorial misconduct so as to deprive [defendant]

of a fair trial" (People v VanVorst, 118 AD3d at 1037 [internal

quotation marks and citation omitted]; accord People v Rivera,

124 AD3d 1070, 1075 [2015]; see People v Hughes, 111 AD3d 1170,

1173 [2013], lv denied 23 NY3d 1038 [2014]). Rather, the

prosecutor's summation was primarily about the "proved facts and

circumstances and the inferences to be drawn therefrom in order

to support or undermine the credibility of any witness[es]"

(People v Bailey, 58 NY2d 272, 277 [1983]), and, considered in

context, the improper comments would not require reversal (see

People v Goldston, 126 AD3d 1175, 1180-1181 [2015]; People v

Head, 90 AD3d 1157, 1158 [2011]; People v McCombs, 18 AD3d 888,

890 [2005]). 

We also find unpersuasive defendant's contention that

County Court deprived him of his right to counsel by denying his

pretrial request for substitution of counsel. Defendant's
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generalized complaints that counsel initially assigned to him by

the Public Defender's office did not spend enough time meeting

with him and could not represent him "in the right fashion" did

not trigger the need for an inquiry into whether good cause

existed for substitution (see People v Smith, 18 NY3d 588, 593

[2012]; People v Beriguette, 84 NY2d 978, 980 [1994]; People v

Donovan, 248 AD2d 895, 896 [1998], lv denied 92 NY2d 851 [1998];

People v Frayer, 215 AD2d 862, 863-864 [1995], lv denied 86 NY2d

794 [1995]). Furthermore, we note that defendant went to trial

with a different attorney from the Public Defender's office,

about whom he has not complained. 

Nor is there any basis to disturb the sentence. County

Court properly considered defendant's role in the drug

transaction that preceded his arrest (see People v Mason, 299

AD2d 724, 726 [2002], lv denied 100 NY2d 564 [2003]), and the

record does not establish that it acted out of personal animosity

or penalized defendant for exercising his right to trial (see

People v Brown, 123 AD3d 1298, 1299 [2014]; People v Griffin, 122

AD3d 1068, 1071 [2014]; People v Mercado, 113 AD3d 930, 934

[2014], lv denied 23 NY3d 1040 [2014]). Rather, the court

specifically rejected the People's suggestion that defendant

should be punished for going to trial and considered the

appropriate factors in reaching its determination (see People v

Crockett, 30 AD3d 768, 771 [2006], lv denied 7 NY3d 866 [2006];

People v Duplessis, 16 AD3d 846, 848 [2005], lv denied 4 NY3d 853

[2005]). We have considered defendant's remaining contentions,

including his claim that the cumulative effect of errors deprived

him of a fair trial, and find them to be unavailing. 

Lahtinen, J.P., Garry and Egan Jr., JJ., concur.
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ORDERED that the judgment is affirmed. 

ENTER:

Robert D. Mayberger

Clerk of the Court