| People v Ashley |
| 2007 NY Slip Op 08319 [45 AD3d 987] |
| November 8, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RandallAshley, Appellant. |
—[*1] Stephen F. Lungen, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.
Cardona, P.J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered December 8, 2005, upon a verdict convicting defendant of the crime of criminalpossession of a weapon in the third degree and the traffic infractions of failure to signal andillegally tinted windows.
On March 9, 2005 around 10:00 p.m., Sullivan County Sheriff's Detective Jason Gorr beganfollowing defendant's vehicle after he observed Andrew Hawkins, an individual he recognized asa participant in an undercover drug transaction the previous day, enter the passenger side of thecar. Thereafter, defendant was pulled over for failure to use his right-hand turn signal(see Vehicle and Traffic Law § 1163 [b]) and for excessively tinted windows onthe vehicle (see Vehicle and Traffic Law § 375 [12-a] [b] [2]). During the stop,Hawkins was seen reaching toward the floor of the passenger seat and, therefore, was removedfrom the vehicle. During the pat search of Hawkins, another officer observed defendant reachingacross the console towards the passenger side of the car. Defendant was also removed and thepassenger [*2]side of the vehicle was searched, revealing a loadedsemiautomatic weapon hidden under the passenger seat.
Defendant's motion to suppress the evidence was denied and, following a joint trial withHawkins, defendant was found guilty of criminal possession of a weapon in the third degree andboth charged traffic infractions. Defendant was sentenced to seven years in prison for the weaponconviction and 15 days for each traffic violation.
We do not agree that County Court erred in failing to suppress the evidence seized during thetraffic stop. First of all, defendant's contention that there was insufficient proof to establish anytraffic violations is being raised for the first time on appeal and, therefore, not preserved for ourreview. In any event, Gorr's unrefuted testimony regarding the traffic violations he observedprovided probable cause to warrant a stop of the vehicle, and any underlying investigatory motivebehind the stop is immaterial (see People v Robinson, 97 NY2d 341, 349-350 [2001]; People v Douglas, 42 AD3d 756,757 [2007], lv denied 9 NY3d 922 [2007]).
Furthermore, we find no error in the limited search of the passenger side of the vehicle wherethe loaded weapon was found. Although defendant and Hawkins were out of the vehicle, neitherone was in handcuffs or restrained. Furthermore, the vehicle was followed from a drugtrafficking area and Hawkins was a known participant in a recent drug transaction. Thesecircumstances, together with the furtive behavior of both defendant and Hawkins reachingtowards the passenger side of the vehicle during the traffic stop, provided a reasonable basis tojustify the limited search of the vehicle (see People v Mundo, 99 NY2d 55, 59 [2002]; People v Jones, 39 AD3d 1169,1171 [2007]).
Next, defendant's challenge to the legal sufficiency of the evidence to support the convictionof criminal possession of a weapon in the third degree has not been preserved for our review bythe generalized, nonspecific motion at the end of trial (see People v White, 41 AD3d 1036 [2007]; People v Carter, 34 AD3d 1342,1342-1343 [2006], lv denied 8 NY3d 844 [2007]). In any event, were we to consider thisissue, we would find that the testimony regarding the loaded weapon found in the car thatdefendant was driving was legally sufficient to support the conviction (see Penal Lawformer § 265.02 [4]) based upon the applicability of the automobile presumption(see Penal Law § 265.15 [3]; People v Carter, 34 AD3d at 1343; People v Tabb, 12 AD3d 951, 952[2004], lv denied 4 NY3d 768 [2005]). Additionally, viewing the evidence in a neutrallight, we conclude that the verdict was not against the weight of the evidence (see People vBleakley, 69 NY2d 490, 495 [1987]).
Next, we are unpersuaded that the sentence imposed, which was the maximum permitted bystatute, was in retaliation for rejecting a plea offer and electing to go to trial. Rather, the recordestablishes that the sentence imposed was based upon the serious nature of the offense and otherinformation contained in the presentence investigation report. To the extent that defendantchallenges the sentence imposed as harsh and excessive, we find no abuse of discretion byCounty Court nor any extraordinary circumstances warranting a reduction of the sentence in theinterest of justice (see People vWright, 1 AD3d 707 [2003], lv denied 1 NY3d [*3]636 [2004]).
Defendant's remaining contentions, to the extent that they are preserved for our review, arewithout merit.
Mercure, Crew III, Carpinello and Kane, JJ., concur. Ordered that the judgment is affirmed.