SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

155 

KA 15-00323 

PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

MICHAEL NANCE, DEFENDANT-APPELLANT. 

 

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

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

HERATY OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Erie County

(Christopher J. Burns, J.), entered January 8, 2015. 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 affirmed. 

Memorandum: On appeal from a judgment convicting him upon a jury

verdict of criminal possession of a weapon in the second degree (Penal

Law § 265.03 [3]), defendant contends that Supreme Court erred in

refusing to suppress the handgun seized from him by Buffalo police

officers. We reject that contention. 

“It is well established that, in evaluating the legality of

police conduct, we ‘must determine whether the action taken was

justified in its inception and at every subsequent stage of the

encounter’ ” (People v Howard, 129 AD3d 1654, 1655, lv denied 27 NY3d

999; see generally People v De Bour, 40 NY2d 210, 215). Here,

contrary to defendant’s contention, the court properly concluded that

each step in the officers’ interactions with defendant was justified. 

The evidence from the suppression hearing establishes that two

officers in a police vehicle initially observed defendant as he walked

across a lawn in a high-crime neighborhood. At that time, the

officers looked at defendant but took no action. Upon observing the

officers, defendant’s eyes widened, he changed direction so that he

would pass behind one of the two police vehicles at the scene, and he

said aloud that the officers were looking at him as if he had done

something wrong. As he passed the officers, defendant took his left

hand out of the pocket of his jeans, and they noticed that he was

wearing a black latex glove on that hand but had no glove on the other

hand, and that he had a bulge in his left pocket. Based on their
-2- 155 

KA 15-00323 

observations, the officers suspected that defendant had a handgun. As

the officers moved their vehicle into defendant’s path of travel,

defendant began to run and, as he slid or jumped over the hood of

their vehicle, he dropped a black handgun. An officer from the second

police vehicle apprehended defendant, and another officer from that

vehicle recovered the handgun. After the police gave him Miranda

warnings, defendant admitted to possessing the handgun.

It is well settled that a “defendant’s flight in response to an

approach by the police, combined with other specific circumstances

indicating that the suspect may be engaged in criminal activity, may

give rise to reasonable suspicion, the necessary predicate for police

pursuit” (People v Sierra, 83 NY2d 928, 929; see People v Crisler, 81

AD3d 1308, 1309, lv denied 17 NY3d 793). We conclude under the

circumstances of this case that the police officers had the requisite

reasonable suspicion to pursue and detain defendant after they made

the observations discussed above and defendant fled upon the approach

of the officers (see People v Haynes, 115 AD3d 676, 676; People v

Britt, 67 AD3d 1023, 1024, lv denied 14 NY3d 770; People v Cruz, 14

AD3d 730, 731-732, lv denied 4 NY3d 852; People v Fajardo, 209 AD2d

284, 284, lv denied 84 NY2d 1031). Furthermore, after the officers

seized defendant and recovered the weapon, they had probable cause to

arrest him (see People v Leung, 68 NY2d 734, 736-737).

Defendant failed to preserve for our review his contention that

the conviction is not supported by legally sufficient evidence

inasmuch as he failed to make a sufficiently specific motion for a

trial order of dismissal at the close of the People’s case (see People

v Gray, 86 NY2d 10, 19). In any event, we reject defendant’s

contention that the conviction is not supported by legally sufficient

evidence (see generally People v Bleakley, 69 NY2d 490, 495) and,

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

Bleakley, 69 NY2d at 495).

Defendant failed to preserve for our review his contention that

the court erred in permitting the prosecution to introduce evidence

indicating that a mixture of DNA from several people was found on the

handgun, and that defendant could not be excluded as a contributor to

that mixture. In any event, that contention is without merit. It is

well settled that “all relevant evidence is admissible unless its

admission violates some exclusionary rule . . . Evidence is considered

relevant if it has any tendency in reason to prove the existence of

any material fact” (People v Nicholson, 26 NY3d 813, 829 [internal

quotation marks omitted]). Consequently, the fact that defendant

could not be excluded as a contributor to the DNA recovered from the

handgun is admissible (see People v Lipford, 129 AD3d 1528, 1530, lv

denied 26 NY3d 1041; People v Roosevelt, 125 AD3d 1452, 1454, lv

denied 25 NY3d 1076; People v Pope, 96 AD3d 1231, 1234, lv denied 20

NY3d 1064; People v Schouenborg, 42 AD3d 473, 474, lv denied 9 NY3d

926). 
-3- 155 

KA 15-00323 

Defendant failed to preserve for our review his contention that

he was deprived of a fair trial by prosecutorial misconduct during

summation inasmuch as he failed to object to the alleged misconduct

(see People v Paul, 78 AD3d 1684, 1684-1685, lv denied 16 NY3d 834;

People v Smith, 32 AD3d 1291, 1292, lv denied 8 NY3d 849). In any

event, we conclude that any impropriety was not “ ‘so pervasive or

egregious as to deprive defendant of a fair trial’ ” (People v

Johnson, 303 AD2d 967, 968, lv denied 100 NY2d 583). 

We reject defendant’s further contention that he was deprived of

a fair trial by ineffective assistance of counsel. With respect to

defendant’s claim that defense counsel was ineffective in failing to

move to preclude the DNA evidence, we conclude that “[d]efendant

failed to demonstrate that such a motion would have been meritorious,

and there is no denial of effective assistance based on the failure to

make a motion or argument that has little or no chance of success”

(People v Jackson, 108 AD3d 1079, 1080, lv denied 22 NY3d 997

[internal quotation marks omitted]). Defendant’s further challenge to

the assistance provided by defense counsel is without merit. It is

well settled that “[a] defendant receives effective assistance of

counsel [where, as here,] the evidence, the law, and the circumstances

of a particular case, viewed in totality and as of the time of the

representation, reveal that the attorney provided meaningful

representation” (People v Speaks, 28 NY3d 990, 992 [internal quotation

marks omitted]).

Finally, the sentence is not unduly harsh or severe.

Entered: March 24, 2017 Frances E. Cafarell

Clerk of the Court