SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

685 

KA 09-02473 

PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, AND SCONIERS, JJ.

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

TYRONE C. BRADLEY, JR., DEFENDANT-APPELLANT.

 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Monroe County Court (Frank P.

Geraci, Jr., J.), rendered June 3, 2009. The judgment convicted

defendant, upon his plea of guilty, 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 his

plea of guilty of criminal possession of a weapon in the second degree

(Penal Law § 265.03 [3]), defendant contends that County Court erred

in denying his motion to suppress the firearm that he was charged with

possessing. Specifically, defendant contends that the police

unlawfully stopped him while he was walking his miniaturized motorbike

on the sidewalk, and that the firearm must be suppressed as a result

of that unlawful stop. We reject that contention. At the suppression

hearing, a police officer testified that he stopped defendant because

defendant was riding the motorbike in the road without a helmet. When

the officer asked defendant whether he had any identification,

defendant answered, “no,” and took a step back, whereupon the officer

reached toward defendant in an attempt to frisk him. Before the

officer could detain him, however, defendant ran away and, during his

flight, punched another officer who had joined in the pursuit. 

Defendant was soon apprehended and found to be in possession of a

loaded firearm, 20 bags of marihuana, and more than $2,000 in cash. 

During a break in the suppression hearing, defendant learned that

the police had inadvertently sold his motorbike at auction. The sale

took place approximately four months after defendant’s arrest and two

months before the suppression hearing. When the suppression hearing

resumed, defendant’s uncle testified that the motorbike was inoperable

on the day of defendant’s arrest, thereby calling into question the
-2- 685 

KA 09-02473 

officer’s hearing testimony that defendant had been riding the

motorbike without a helmet. In rebuttal, the People called another

police officer as a witness, who testified that she saw defendant

riding the same motorbike in the road 5 to 10 minutes before he was

stopped and that, after defendant was taken into custody, she started

the motorbike and “revved the engine.” The court then permitted

defendant to take the stand as the final witness. Defendant testified

that the motorbike would not start on the day in question and that he

was pushing it on the sidewalk to his house from his uncle’s house,

where it had been stored since it had broken down. The court denied

defendant’s suppression motion, stating that its decision was based on

the testimony that it found to be credible. 

In support of his contention that the stop was unlawful,

defendant contends that the court should have drawn a permissive

adverse inference against the People due to the failure of the police

to preserve the motorbike. At the suppression hearing, however,

defendant did not request a permissive adverse inference; instead,

defendant asked the court to preclude any testimony at the hearing

about the motorbike and to strike any such testimony that had already

been given. In the alternative, defendant asked the court to assume

that the condition of the motorbike was as defendant alleged, i.e.,

inoperable. Thus, defendant’s contention that the court should have

drawn a permissive adverse inference is unpreserved for our review

(see CPL 470.05 [2]). 

In any event, even assuming, arguendo, that defendant requested

the court to draw an adverse inference, and that the court erred in

failing to do so (see People v Handy, 20 NY3d 663, 669-670), we

conclude that such error is harmless (see People v Blake, 105 AD3d

431, 431). We note that, in his motion papers, defendant’s attorney

stated that a suppression hearing was warranted because defendant,

when detained by the police, was “sitting on the front lawn of a home

on Reynolds Street” with several of his friends. Although defense

counsel knew at the time that the police had claimed to have stopped

defendant for riding the motorbike without a helmet, he did not assert

that the motorbike was inoperable or that defendant was walking it on

the sidewalk when approached by the police. It was only after

defendant learned that the motorbike had been sold at auction that

defendant asserted that the motorbike was inoperable. Under those

circumstances, and considering that the court evidently credited the

testimony of the police officers (see generally People v Prochilo, 41

NY2d 759, 761), we conclude that there is no reasonable possibility

that the court would have found the stop to have been unlawful even if

it had drawn a permissive adverse inference against the People (see

generally People v Crimmins, 36 NY2d 230, 237).

We have reviewed defendant’s remaining contentions and conclude

that they lack merit. 

Entered: July 5, 2013 Frances E. Cafarell

Clerk of the Court