| People v Hawkins |
| 2007 NY Slip Op 08320 [45 AD3d 989] |
| November 8, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v AndrewHawkins, 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 crimes of criminalpossession of a weapon in the third degree, criminal possession of a controlled substance in thethird degree, criminal possession of a controlled substance in the fourth degree and unlawfulpossession of marihuana.
On March 9, 2005 at approximately 10:00 p.m., Sullivan County Sheriff's Detective JasonGorr was in an unmarked car patrolling an area known for high drug activity. He noticeddefendant getting into the passenger side of a car at a gas station and recognized him as aparticipant in a drug sale involving an undercover police officer the previous day. Gorr followedthe vehicle, which, according to Gorr, had excessively tinted windows and made a right turnwithout use of a directional after leaving the gas station. Gorr then radioed other uniformedofficers in a marked car who subsequently stopped the vehicle.
Gorr, who was positioned at the rear passenger side of the car during the traffic stop,observed defendant slouch in his seat and reach towards the floor. He removed defendant fromthe car and was in the process of conducting a pat-down search when another officer arrived and[*2]saw the driver, codefendant Randall Ashley, reach towardsthe passenger side of the car. At that point, Ashley was removed from the vehicle and Gorrlooked into the passenger side of the vehicle finding a loaded semiautomatic weapon under thepassenger seat. Defendant was placed under arrest and, during a search of his person, was foundto be in possession of marihuana and cocaine. Defendant was indicted for criminal possession ofa weapon in the third degree, criminal possession of a controlled substance in the third and fourthdegrees and unlawful possession of marihuana.
Following a joint trial with Ashley, defendant was found guilty of all charges[FN*]and sentenced, as a second felony offender, to concurrent prison terms of seven years for theconvictions of criminal possession of a weapon and criminal possession of a controlled substancein the third degree and a consecutive sentence of three years for criminal possession of acontrolled substance in the fourth degree. In addition, defendant received three years ofpostrelease supervision; however, upon resentencing, that was changed to five years.
Initially, defendant contends that County Court erred in denying his pretrial motion tosuppress the weapon and drugs, claiming that there was no probable cause to stop and search thevehicle. Gorr's unrefuted testimony during the suppression hearing regarding his observation oftraffic violations—namely, the failure to use a directional when making a right-hand turn(see Vehicle and Traffic Law § 1163 [b]) and the excessively tinted windows onthe vehicle (see Vehicle and Traffic Law § 375 [12-a] [b] [2])—providedprobable cause to justify the stop of the vehicle (see People v Kelly, 37 AD3d 866, 867 [2007], lv denied 8NY3d 986 [2007]), and any underlying motive or pretext for the stop is irrelevant (see Peoplev Wright, 98 NY2d 657, 658-659 [2002]; People v Robinson, 97 NY2d 341, 349[2001]; People v Douglas, 42 AD3d756, 757-758 [2007]).
Similarly unpersuasive is defendant's contention that the limited search of the vehicle by thepolice was improper. Although defendant and Ashley were out of the car, neither was handcuffedor restrained. Moreover, the vehicle had been followed from a drug trafficking area anddefendant was a known participant in a recent drug transaction. This information, together withthe furtive movements toward the passenger-side floor of the vehicle by both defendant andAshley during the police encounter, justified the limited search of that area of the vehicle (seePeople v Mundo, 99 NY2d 55, 59 [2002]; People v Carvey, 89 NY2d 707 [1997]; People v Jones, 39 AD3d 1169,1171 [2007]). Accordingly, we find no error in County Court denying defendant's motion tosuppress the evidence found.
Next, defendant contends that his conviction of criminal possession of a controlled substancein the third degree is not supported by legally sufficient evidence inasmuch as there wasinadequate proof of his intent to sell drugs. While defense counsel joined in the codefendant'smotion for a trial order of dismissal asserting that the People failed to prove their case, thisgeneral challenge does not preserve for our review the issue of legal sufficiency (see People vGray, 86 NY2d 10, 19 [1995]; People v Lozada, 41 AD3d 1042, 1043 [2007]). In any event, werewe to consider the issue, we would find it without merit. Testimony established that defendantparticipated in a recent drug sale and hid cocaine having a street value of $700 in his [*3]anal cavity. Taken together with the possession of a loaded weaponand viewed in a light most favorable to the People (see People v Contes, 60 NY2d 620,621 [1983]), this evidence is sufficient to infer defendant's intent to sell the cocaine (seePenal Law § 220.16 [1]; People v Wright, 283 AD2d 712, 714 [2001], lvdenied 96 NY2d 926 [2001]). Furthermore, upon our independent review of the record, weconclude that the verdict is not against the weight of the evidence (see People v Bleakley,69 NY2d 490, 495 [1987]).
Next, we find without merit defendant's argument that the imposition of consecutivesentences was harsh and excessive (see People v Almeida, 39 NY2d 823, 824 [1976]).Furthermore, we do not agree that County Court erred in resentencing defendant from athree-year to a five-year period of postrelease supervision. Penal Law § 70.45 (2) provides,in relevant part, that "[t]he period of post-release supervision for a determinate sentence. . . shall be five years except that . . . (e) such period shall. . . [not be] more than three years whenever a determinate sentence ofimprisonment is imposed pursuant to . . . section 70.02 of this article upon aconviction of a class D or class E violent felony offense." Possession of a weapon in the thirddegree is a class D violent felony, however, defendant was adjudicated a second felony offenderand, therefore, sentenced pursuant to Penal Law § 70.06 (6) rather than Penal Law §70.02. Accordingly, the imposition of a five-year period of postrelease supervision wasstatutorily required (see People vJordan, 21 AD3d 907, 908 [2005], lv denied 5 NY3d 883 [2005]; People v Chestnut, 18 AD3d 965,966 [2005]).
Defendant's argument regarding the charge given to the jury is not preserved for our reviewand, in any event, is unavailing. Finally, defendant's remaining contentions, including his claimsthat he was precluded from entering a guilty plea and was denied the effective assistance ofcounsel, have been reviewed and found to be without merit.
Mercure, Crew III, Carpinello and Kane, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: County Court conditionallydischarged the unlawful possession of marihuana conviction.