State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 27, 2016 106113 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

THOMAS FRANQUEIRA JR.,

Appellant.

________________________________

Calendar Date: September 9, 2016

Before: McCarthy, J.P., Egan Jr., Devine, Clark and Aarons, JJ.

__________

William D. Robert, Albany, for appellant.

Joel E. Abelove, District Attorney, Troy (Vincent J.

O'Neill of counsel), for respondent.

__________

Egan Jr., J.

Appeal from a judgment of the County Court of Rensselaer

County (Ceresia, J.), rendered April 30, 2013, upon a verdict

convicting defendant of the crimes of criminal possession of a

weapon in the second degree (two counts) and menacing in the

second degree.

Defendant was charged in a six-count indictment with three

counts of criminal possession of a weapon in the second degree,

two counts of menacing in the second degree and one count of

resisting arrest. The charges stemmed from an incident that

occurred on the evening of October 14, 2012 in the parking lot of

Popeye's Chicken on Hoosick Street in the City of Troy,

Rensselaer County. On the evening in question, a woman called

for a taxicab to transport her to that location – intending to

meet up with defendant. When the cab – then occupied by the
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woman, her two children, the cab driver and the driver's husband

– arrived at Popeye's, a disagreement arose between defendant and

the cab driver, during the course of which defendant produced

what was described as a silver handgun. Local police were

notified, a description of the assailant was transmitted and,

minutes later, defendant was stopped as he was observed running

through a nearby parking lot and was returned to the scene for a

showup identification. Both the cab driver and the driver's

husband identified defendant as their assailant, and a black and

silver handgun was recovered nearby.

Following unsuccessful motions to suppress, among other

things, the pretrial showup identification, the matter proceeded

to trial in early March 2013. Defendant's first trial ended in a

mistrial but, at the conclusion of the second trial, defendant

was convicted of two counts of criminal possession of a weapon in

the second degree (counts 1 and 2 pertaining to the cab driver)

and one count of menacing in the second degree (count 3 as to the

cab driver) and was acquitted of those counts of the indictment

charging him with menacing in the second degree (count 4) and

criminal possession of a weapon in the second degree (original

count 6)1 as to the cab driver's husband. Defendant thereafter

was sentenced, as a second felony offender, to an aggregate term

of 10 years in prison followed by five years of postrelease

supervision. This appeal by defendant ensued.

Initially, we agree with County Court that defendant was

properly stopped and detained pending the showup identification. 

"Where a police officer reasonably suspects that a particular

person has committed, is committing or is about to commit a

1 Count 5 of the indictment – charging defendant with

resisting arrest – was dismissed prior to trial. In its charge

to the jury, however, County Court denominated the original count

6 of the indictment – charging defendant with criminal possession

of a weapon in the second degree as to the cab driver's husband –

as count 5. Hence, any subsequent references to count 5, whether

in County Court's charge or the parties' briefs on appeal, appear

to be to the original count 6 of the indictment.
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felony or misdemeanor, the CPL authorizes a forcible stop and

detention of that person" (People v Stroman, 107 AD3d 1023, 1023

[2013] [internal quotation marks and citations omitted], lv

denied 21 NY3d 1046 [2013]; see People v Godallah, 132 AD3d 1146,

1149 [2015]). "[A]n investigatory stop may be upheld if the

authorities knew that a crime actually had been committed, the

total period of the detention was brief, the police diligently

pursued a minimally intrusive means of investigation likely to

confirm or dispel suspicion quickly, during which time it was

necessary to detain the defendant and there is no proof of

significantly less intrusive means available to accomplish the

same purpose" (People v Mabeus, 68 AD3d 1557, 1561 [2009]

[internal quotation marks and citations omitted], lv denied 14

NY3d 842 [2010]; see People v Hicks, 68 NY2d 234, 242-243 [1986];

People v Dibble, 43 AD3d 1363, 1364-1365 [2007], lv denied 9 NY3d

1032 [2008]).

The testimony adduced at the suppression hearing revealed

that Brandon Cipperly, a police officer with the City of Troy

Police Department, received a radio transmission advising of a

possible robbery at Popeye's Chicken on Hoosick Street. While en

route to the scene, Cipperly also received a description of the

suspect – "[a] light-skinned Hispanic male, longer, curlier hair,

dark or gray hooded sweatshirt, a lighter colored sweatshirt

underneath, either dark jeans or dark long or shorter jeans." 

Cipperly further was advised that the suspect was last seen

running east on Hoosick Street and that "there was a possible

silver color handgun involved." Approximately 90 seconds later,

Cipperly approached the scene; when he was "[l]ess than 50 yards"

away from Popeye's Chicken, Cipperly encountered an individual

matching the description given – later identified as defendant –

running toward the patrol vehicle "in a full sprint" and with his

hands at his sides or in his pockets. Cipperly exited his patrol

vehicle with his weapon drawn, ordered defendant to the ground

and instructed defendant to show his hands. Defendant refused to

comply and continued advancing toward the patrol vehicle. When

defendant began slamming his hands on the hood of the vehicle,

Cipperly attempted to handcuff him, at which point defendant

tried to flee. After defendant was handcuffed, he smashed his

head on the pavement, stating his intention to sue the police
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department. Approximately three or four minutes later, two of

Cipperly's fellow officers separately transported the cab driver

and the driver's husband to the scene for purposes of a showup

identification, whereupon each immediately and unequivocally

identified defendant as the individual who had pulled a gun on

them.

Defendant does not dispute that the showup identification

occurred in close temporal and geographic proximity to the scene

of the crime; rather, defendant argues that his detention ripened

into a full-blown arrest (for which the police purportedly lacked

probable cause) or, alternatively, that the showup identification

procedures were unduly suggestive. We disagree on both counts. 

Contrary to defendant's assertion, his seizure, "made on the

basis of reasonable suspicion, was a brief investigative

detention for the purpose of prompt identification by the

victim[s], and the fact that the police [initially] detained

defendant at gunpoint and [thereafter] used handcuffs did not

transform the detention into an arrest requiring probable cause"

(People v Gatling, 38 AD3d 239, 239-240 [2007], lv denied 9 NY3d

865 [2007]; see People v Allen, 73 NY2d 378, 379-380 [1989];

People v Mabeus, 68 AD3d at 1560-1561; People v Medina, 37 AD3d

240, 242 [2007], lv denied 9 NY3d 847 [2007]; People v Williams,

305 AD2d 804, 806-807 [2003]). As to the actual showup

procedures, the identification occurred in a well-lit area within

minutes of – and in close proximity to – the scene of the crime,

and the mere fact that defendant was handcuffed and standing next

to police officers did not render the showup impermissibly

suggestive (see People v Bellamy, 118 AD3d 1113, 1116 [2014], lv

denied 25 NY3d 1159 [2015]; People v Mathis, 60 AD3d 1144, 1146

[2009], lv denied 12 NY3d 927 [2009]). Similarly, the fact that

officers advised the cab driver and the driver's husband that a

suspect fitting the description had been stopped did not

invalidate the showup, as this information "merely conveyed what

a witness of ordinary intelligence would have expected under the

circumstances" (People v Mathis, 60 AD3d at 1146 [internal

quotation marks and citations omitted]). In light of this

conclusion, we need not consider defendant's probable cause

argument.
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Defendant next contends that the People failed to establish

a sufficient chain of custody for the handgun to permit its

introduction into evidence. Again, we disagree. "Real evidence

is admissible when it is sufficiently connected with the

defendant[] to be relevant to [the] issue in the case. If the

object [in question] was taken from the defendant or found at the

scene of the crime, the foundation is laid once it is shown that

the thing offered is the one recovered and that its condition is

substantially unchanged. The fact that it might have passed

through several hands . . . is of little significance when the

object possesses unique characteristics or markings and is not

subject to material alteration which is not readily apparent"

(People v Connelly, 35 NY2d 171, 174 [1974] [internal quotation

marks and citations omitted]; see People v Shoga, 89 AD3d 1225,

1226 [2011], lv denied 18 NY3d 886 [2012]; People v Weiler, 194

AD2d 894, 895 [1993], lv denied 82 NY2d 728 [1993]).

Here, police officer Justin Ashe testified that he and two

other members of the Troy Police Department retraced defendant's

steps on the night in question; during the course of that search,

Ashe found "a black and silver Sig Sauer Mosquito handgun" lying

in a grassy area. Ashe radioed that he had located the handgun

and thereafter testified that he "stayed with the weapon until

[an evidence] box and camera" were brought to his location. 

After Ashe photographed the weapon, Sergeant Raymond White

ejected the magazine, cleared a round from the chamber and placed

the gun, magazine and ejected round into an evidence box, which

Ashe retained until he turned the box over to Matthew Beaudoin,

an evidence technician. White's testimony mirrored Ashe's

account of the manner in which the gun was collected and placed

into the evidence box. Beaudoin, in turn, testified that he

received the evidence box containing the gun and ammunition from

Ashe and White and, upon examining the weapon, recorded the

serial number contained thereon. Beaudoin further testified that

the serial number that he recorded on the gun intake form matched

the serial number on the handgun that he was shown at trial. 

Finally, both the property room coordinator and the officer who

test-fired the handgun identified the weapon at trial –

specifically, the property room coordinator identified the weapon

by matching the serial number written on a tag attached to the
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evidence box to the serial number contained on the weapon itself,

and the officer who test-fired the weapon identified the handgun

both by its serial number and by his initials, which he had

engraved upon the handgun's grip. Such proof, in our view, is

sufficient to establish a valid chain of custody for the weapon

(see People v Gamble, 135 AD3d 1078, 1080 [2016], lv denied 27

NY3d 997 [2016]; People v Shoga, 89 AD3d at 1226). Further,

inasmuch as the record as a whole "provide[s] reasonable

assurances of the identity and unchanged condition of the

[handgun]" (People v Hawkins, 11 NY3d 484, 494 [2008]), we are

satisfied that any gaps in that chain go to the weight to be

accorded such evidence, not its admissibility (see id. at 494;

People v Rolle, 72 AD3d 1393, 1396 [2010], lv denied 16 NY3d 745

[2011]). Accordingly, County Court did not err in permitting the

People to introduce the handgun into evidence.

Nor are we persuaded that County Court abused its

discretion in denying defendant's motions for a mistrial based

upon prosecutorial misconduct. "Reversal of a conviction for

prosecutorial misconduct is warranted only where a defendant has

suffered substantial prejudice such that he [or she] was deprived

of due process of law" (People v McCombs, 18 AD3d 888, 890

[2005]; accord People v Newkirk, 75 AD3d 853, 857 [2010], lv

denied 16 NY3d 834 [2011]). "In determining whether

prosecutorial misconduct deprived a defendant of a fair trial,

this Court considers its severity and frequency, the corrective

action taken, if any, and whether the result would likely have

been the same in the absence of the conduct" (People v Wlasiuk,

136 AD3d 1101, 1103 [2016] [internal quotation marks and

citations omitted], lv denied 27 NY3d 1009 [2016]).

Here, defendant cites two instances of alleged

prosecutorial misconduct – a reference during the People's

opening to the fact that there were "two little kids, two tiny,

small children" inside of the taxi when defendant displayed the

handgun and, further, a line of questioning directed at two

teardrop tattoos on defendant's face. As to the comment made

during the People's opening, defense counsel promptly objected

and moved for a mistrial – contending that the People

impermissibly made reference to an uncharged crime (endangering
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the welfare of a child). County Court denied that motion but

inquired as to whether defense counsel nonetheless wished for the

court to instruct the jury to disregard that portion of the

People's opening. Defense counsel, after twice being questioned

on this point, declined to take a position on the need for such

an instruction – leaving resolution of that issue to the

discretion of County Court – and no such instruction ultimately

was given. To the extent that defendant's argument on this point

has been preserved for our review, we find it to be lacking in

merit, as this isolated comment did not deprive defendant of a

fair trial (see People v Delaney, 42 AD3d 820, 822 [2007], lv

denied 9 NY3d 922 [2007]).

We reach a similar conclusion with respect to the issue of

defendant's tattoos – namely, the implication that defendant had

attempted to conceal his tattoos from the jury. Defense counsel

unsuccessfully moved for a mistrial and, following much debate,

the parties stipulated that defendant had "two teardrop tattoos

under his left eye." County Court thereafter instructed the jury

"not to speculate or draw any conclusions as to what such tattoos

may mean" or "to consider those tattoos for any . . . reason"

other than the identification of defendant. In view of the

stipulation and resulting instructions to the jury, we again do

not find that this particular line of questioning operated to

deprive defendant of a fair trial.

Finally, as to defendant's request for a missing witness

charge, we agree that defendant failed to demonstrate that the

requested witness could offer noncumulative, material testimony

(see e.g. People v Stokes, 141 AD3d 1032, 1034 [2016]). 

Accordingly, County Court did not abuse its discretion in denying

defendant's request in this regard. Defendant's related request

– that County Court erred in failing to charge the jury with the

lesser included offense of criminal possession of a weapon in the

fourth degree as to counts 1, 2 and 5 of the indictment – is

equally lacking in merit.2 Initially, inasmuch as defendant was

2 As noted previously, count 5 of the indictment – charging

defendant with resisting arrest – was dismissed prior to trial,

and subsequent references thereto appear to refer to the original
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acquitted of the crime charged in count 5 of the indictment,

defendant's argument as to that particular count is moot (see

People v Adams, 50 AD3d 433, 434 [2008], lv denied 10 NY3d 955

[2008]; People v Moore, 35 AD3d 291, 292 [2006], lv denied 8 NY3d

988 [2007]). As to count 1 of the indictment, defendant was

charged with criminal possession of a weapon in the second degree

under Penal Law § 265.03 (1) (b) based upon the theory that he

possessed a loaded firearm; he requested that the jury be charged

with the lesser included offense of criminal possession of a

weapon in the fourth degree under Penal Law § 265.01 (2) –

contending that he possessed either an unloaded firearm or a

knife. Under count 2 of the indictment, defendant was charged

with criminal possession of a weapon in the second degree

pursuant to Penal Law § 265.03 (3) based upon the theory that he

possessed a loaded firearm outside of his home or place of

business; as to this count, defendant also requested that the

jury be charged with the lesser included offense of criminal

possession of a weapon in the fourth degree – this time relying

upon Penal Law § 265.01 (1) and arguing either that the firearm

was unloaded/inoperable, that he possessed such weapon in his

home or place of business or that the weapon in question actually

was a knife. County Court denied these requests finding, among

other things, that there was no reasonable view of the evidence

to support a finding that the handgun was unloaded or inoperable

or that defendant's possession of the handgun occurred in his

home or place of business.

"To establish entitlement to a lesser included offense

charge, a defendant must demonstrate that, in all circumstances,

it is impossible to commit the greater crime without

concomitantly, by the same conduct, committing the lesser offense

and, secondarily, that there is a reasonable view of the evidence

that would support a finding that he or she committed the lesser

offense but not the greater" (People v Grayson, 138 AD3d 1250,

1251 [2016] [internal quotation marks, brackets, ellipsis and

citations omitted], lv denied 27 NY3d 1132 [2016]; see People

Seals, 135 AD3d 985, 986 [2016]). Beginning with defendant's

theory that he possessed a knife instead of a handgun, as County

count 6 of the indictment (see note 1, supra).
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Court aptly observed, possession of a knife is not an element of

criminal possession of a weapon in the second degree under Penal

Law § 265.03. Accordingly, as defendant could have committed

criminal possession of a weapon in the second degree without

concomitantly committing criminal possession of a weapon in the

fourth degree under the cited subdivision (Penal Law § 265.01

[2]), the latter did not constitute a lesser included offense of

the former. As to the balance of defendant's argument on this

point, we agree with County Court that there is no reasonable

view of the evidence that the firearm was unloaded or inoperable

(see People v Marrero, 187 AD2d 281, 281 [1992], lv denied 81

NY2d 791 [1993]), nor is there any reasonable view of the

evidence that defendant possessed the handgun in his home or

place of business (compare People v Verni, 127 AD3d 887, 888

[2015], lv denied 25 NY3d 1209 [2015]). Accordingly, County

Court properly denied defendant's request to charge in this

regard. Defendant's remaining contentions, including his

assertion that County Court impermissibly curtailed his

examination of certain witnesses, have been examined and found to

be lacking in merit.

McCarthy, J.P., Devine, Clark and Aarons, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court