People
v.
Braithwaite

Appellate Division of the Supreme Court of New York, First DepartmentNov 4, 1993
198 A.D.2d 16 (N.Y. App. Div. 1993)
198 A.D.2d 16603 N.Y.S.2d 136

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November 4, 1993

Appeal from the Supreme Court, New York County (Kristin Booth Glen, J.).


Previously, this appeal was held in abeyance and remanded for a second reconstruction hearing pursuant to People v Mullen ( 44 N.Y.2d 1, 5) based on the fact that defendant was not present at the initial reconstruction hearing, held on October 8, 1991, in connection with defendant's motion to suppress physical evidence ( 190 A.D.2d 572). Upon receipt of an affidavit signed by the defendant, in which he retroactively waived his presence at the reconstruction hearing held on October 8, 1991 and acknowledged all of the consequences of that waiver, we now review the merits of defendant's contentions on the appeal.

The radio call of a robbery in progress coupled with defendant's actions upon the arrival of the police officers at the apartment in question, provided the officers with ample justification to detain the defendant while they searched the vestibule; the discovery of the loaded handgun in the immediate area where defendant was seen bending over justified the arrest (People v Martinez, 80 N.Y.2d 444; cf., People v Walker, 192 A.D.2d 734; People v Johnson, 188 A.D.2d 291, lv denied 81 N.Y.2d 887).

Viewing the evidence in the light most favorable to the People (People v Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932), we conclude that the defendant's guilt of the crimes charged was proved by overwhelming evidence (People v Bleakley, 69 N.Y.2d 490). The defendant failed to properly preserve the issue raised on appeal concerning the prosecutor's summation comment (CPL 470.05). We find the defendant's claims with respect to the trial court's charge to be meritless. Defendant's sentence was appropriate in view of his criminal history and the circumstances of this case.

Concur — Sullivan, J.P., Rosenberger, Wallach and Ross, JJ.