People v. Mitchell, 129 A.D.3d 1319 (N.Y. App. Div. 2015). · Go Syfert
People v. Mitchell, 129 A.D.3d 1319 (N.Y. App. Div. 2015). Cases Citing This Book View Copy Cite
19 citation events (19 in the last 25 years) across 2 distinct courts.
Strongest positive: People v. Hinds (nyappdiv, 2023-06-15)
Top citers, strongest first. 14 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Hinds
N.Y. App. Div. · 2023 · confidence medium
In any event, the basis offered by defendant for that request amounted to communication difficulties — which counsel advised County Court were the result of defendant's failure to show up for scheduled meetings or return telephone calls — defendant's discomfort with counsel's work as an assistant district attorney years earlier, and defendant's generalized concern that counsel did not have his "best interests in mind." Those assertions did not suggest that good cause for substitution, such as irreconcilable differences or a conflict of interest, existed, nor did they "trigger the need for …
discussed Cited as authority (rule) People v. Atkinson
N.Y. App. Div. · 2020 · confidence medium
People v Rupnarine , 140 AD3d 1204, 1205 [3d Dept 2016]; People v Mitchell , 129 AD3d 1319, 1321 [3d Dept 2015], lv denied 26 NY3d 1041 [2015]), we conclude that those isolated improprieties were not so egregious as to deprive defendant of a fair trial, especially considering that the prosecutor and County Court repeatedly made clear to the jury that the burden of proof rested with the People and never shifted to the defense ( see Mitchell , 129 AD3d at 1321 ; People v Matthews , 27 AD3d 1115, 1116 [4th Dept 2006]; see also People v Benton , 106 AD3d 1451, 1452 [4th Dept 2013], lv denied 21 NY…
discussed Cited as authority (rule) People v. Anderson
N.Y. App. Div. · 2017 · confidence medium
Defendant’s contention that the prosecutor improperly attempted to shift the burden of proof is unpreserved, as he did not object to the comments in question (see People v Mitchell, 129 AD3d 1319, 1321 [2015], lv denied 26 NY3d 1041 [2015]).
discussed Cited as authority (rule) People v. Anderson
N.Y. App. Div. · 2017 · confidence medium
Defendant’s contention that the prosecutor improperly attempted to shift the burden of proof is unpreserved, as he did not object to the comments in question (see People v Mitchell, 129 AD3d 1319, 1321 [2015], lv denied 26 NY3d 1041 [2015]).
discussed Cited as authority (rule) People v. Anderson
N.Y. App. Div. · 2017 · confidence medium
Defendant’s contention that the prosecutor improperly attempted to shift the burden of proof is unpreserved, as he did not object to the comments in question (see People v Mitchell, 129 AD3d 1319, 1321 [2015], lv denied 26 NY3d 1041 [2015]).
discussed Cited as authority (rule) People v. Toledo
N.Y. App. Div. · 2016 · confidence medium
In that regard, defendant’s generalized complaint that counsel had not spent sufficient time with him did not establish good cause for substitution or compel further inquiry under these circumstances (see People v Mitchell, 129 AD3d 1319, 1321 [2015], lv denied 26 NY3d 1041 [2015]).
discussed Cited as authority (rule) People v. Scippio
N.Y. App. Div. · 2016 · confidence medium
Further, we are unpersuaded by defendant’s contention that the cumulative effect of various, yet undefined, alleged errors deprived him of a fair trial, as our review of the record as a whole reveals otherwise (see People v Mitchell, 129 AD3d 1319, 1322 [2015], lv denied 26 NY3d 1041 [2015]; People v Green, 270 AD2d 566, 569 [2000], lv denied 95 NY2d 853 [2000]).
discussed Cited as authority (rule) People v. Matthews
N.Y. App. Div. · 2016 · confidence medium
Defendant’s nonspecific complaint that defense counsel had been dishonest with him did not constitute a request for substitution of counsel and thus “did not trigger the need for an inquiry into whether good cause existed for substitution” (People v Mitchell, 129 AD3d 1319, 1321 [2015], lv denied 26 NY3d 1041 [2015]).
discussed Cited as authority (rule) People v. Matthews
N.Y. App. Div. · 2016 · confidence medium
Defendant’s nonspecific complaint that defense counsel had been dishonest with him did not constitute a request for substitution of counsel and thus “did not trigger the need for an inquiry into whether good cause existed for substitution” (People v Mitchell, 129 AD3d 1319, 1321 [2015], lv denied 26 NY3d 1041 [2015]).
examined Cited as authority (rule) People v. Acevedo (4×) also: Cited "see"
N.Y. App. Div. · 2016 · confidence medium
Initially, defendant’s challenge to the prosecutor’s remarks regarding the testimony of defendant’s mother and whether defendant disputed that crack was found in his jacket went unobjected to at trial and, thus, are unpreserved for our review (see People v Adams, 135 AD3d 1154, 1158 [2016], lv denied 27 NY3d 990 [2016]; People v Mitchell, 129 AD3d 1319, 1321 [2015], lv denied 26 NY3d 1041 [2015]).
discussed Cited as authority (rule) People v. Rupnarine
N.Y. App. Div. · 2016 · confidence medium
We agree with defendant that these comments improperly shifted the burden of proof from the People to defendant (see People v Mitchell, 129 AD3d 1319, 1321 [2015], lv denied 26 NY3d 1041 [2015]; People v Hendrie, 24 AD3d 871, 873 [2005], lv denied 6 NY3d 776 [2006]; People v Jamal, 307 AD2d 267, 268 [2003]).
discussed Cited as authority (rule) People v. Melendez
N.Y. App. Div. · 2016 · confidence medium
Viewing the prosecutor’s comment in the context of the entire summation and noting County Court’s prompt curative instruction, we find no reversible error (see People v Mitchell, 129 AD3d 1319, 1321 [2015], lv denied 26 NY3d 1041 [2015]; People v Hatchcock, 96 AD3d 1082, 1085 [2012], lv denied 19 NY3d 997 [2012]; People v Hathaway, 159 AD2d 748, 752 [1990]).
discussed Cited as authority (rule) People v. Godallah
N.Y. App. Div. · 2015 · confidence medium
Based on the physical description of defendant, the resemblance to his brother, and the reaction by the two women in the backseat, Lawyer had a reasonable suspicion that defendant was the person who had committed the home invasion and could reasonably believe that it was necessary to stop defendant and to pat him down to determine whether he was in possession of a dangerous weapon (see People v Mitchell, 129 AD3d 1319, 1320 [2015]; People v Issac, 107 AD3d 1055, 1057 [2013]; People v Stroman, 107 AD3d at 1024 ).
discussed Cited "see, e.g." People v. Joseph (Deborah)
N.Y. App. Term. · 2017 · signal: see also · confidence low
To the extent defendant argues that the sentence imposed improperly penalized her for exercising her constitutional right to remain silent, defendant's argument lacks merit, as the record reveals no retaliation or vindictiveness by the District Court against defendant for remaining silent ( see People v Clark , 129 AD3d 1 , 26 [2015]; see also People v Mitchell , 129 AD3d 1319 , 1321 [2015]).
Retrieving the full opinion text from the archive…
The People of the State of New York, Respondent,
v.
Rashan L. Mitchell, Appellant
105473.
Appellate Division of the Supreme Court of the State of New York.
Jun 18, 2015.
129 A.D.3d 1319
Rose, Lahtinen, Garry, Egan.
Cited by 16 opinions  |  Published
Rose, J.

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”[*1320] (People v Perkins, 62 AD3d 1160, 1161 [2009], lv denied 13 NY3d 748 [2009], quoting District of Columbia v Heller, 554 US 570, 629 [2008]; see People v Hughes, 83 AD3d 960, 961-962 [2011], affd 22 NY3d 44 [2013]).

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]).

[*1321] Although defendant also contends that the prosecutor’s remarks during summation improperly shifted the burden of proof, defendant did not object to the summation and, thus, this issue is not preserved for our review (see People v VanVorst, 118 AD3d 1035, 1037 [2014]; People v Reichel, 110 AD3d 1356, 1364 [2013], lv denied 22 NY3d 1090 [2014]). Were we to consider it, we would agree that the prosecutor impermissibly commented that defendant offered no evidence to explain why his DNA was on the handgun and should not have suggested that to believe defendant would require believing that the police officers risked their jobs to frame him. Nevertheless, we would not find a “flagrant and pervasive pattern of prosecutorial misconduct so as to deprive [defendant] of a fair trial” (People v VanVorst, 118 AD3d at 1037 [internal quotation marks and citation omitted]; accord People v Rivera, 124 AD3d 1070, 1075 [2015]; see People v Hughes, 111 AD3d 1170, 1173 [2013], lv denied 23 NY3d 1038 [2014]). Rather, the prosecutor’s summation was primarily about the “proved facts and circumstances and the inferences to be drawn therefrom in order to support or undermine the credibility of any witness [es] ” (People v Bailey, 58 NY2d 272, 277 [1983]), and, considered in context, the improper comments would not require reversal (see People v Goldston, 126 AD3d 1175, 1180-1181 [2015]; People v Head, 90 AD3d 1157, 1158 [2011]; People v McCombs, 18 AD3d 888, 890 [2005]).

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 [*1322] v Brown, 123 AD3d 1298, 1299 [2014]; People v Griffin, 122 AD3d 1068, 1071 [2014]; People v Mercado, 113 AD3d 930, 934 [2014], lv denied 23 NY3d 1040 [2014]). Rather, the court specifically rejected the People’s suggestion that defendant should be punished for going to trial and considered the appropriate factors in reaching its determination (see People v Crockett, 30 AD3d 768, 771 [2006], lv denied 7 NY3d 866 [2006]; People v Duplessis, 16 AD3d 846, 848 [2005], lv denied 4 NY3d 853 [2005]). We have considered defendant’s remaining contentions, including his claim that the cumulative effect of errors deprived him of a fair trial, and find them to be unavailing.

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

Ordered that the judgment is affirmed.