People v. Mitchell

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.

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”

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 Cl) 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 Cl 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 transaction engaged in by the Cl, 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]).

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 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

Lahtinen, J.P., Garry and Egan Jr., JJ., concur.

Ordered that the judgment is affirmed.