| People v Washington |
| 2008 NY Slip Op 03803 [50 AD3d 1539] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ElroyWashington, Appellant. |
—[*1] Elroy Washington, defendant-appellant pro se. Lawrence Friedman, District Attorney, Batavia (David E. Gann of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), renderedNovember 3, 2005. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a controlled substance in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, following a jury trial, ofcriminal possession of a controlled substance in the first degree (Penal Law § 220.21[former (1)]). Defendant failed to preserve for our review his challenge to the legal sufficiency ofthe evidence (see People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d678 [2001]) and, in any event, that challenge is without merit (see generally People vBleakley, 69 NY2d 490, 495 [1987]). We further conclude that the verdict is not against theweight of the evidence (see generallyPeople v Danielson, 9 NY3d 342, 348 [2007]; Bleakley, 69 NY2d at 495). Thejury was entitled to reject the testimony of the codefendant that defendant was not involved in thecrime and to find, based upon the automobile presumption set forth in Penal Law § 220.25(1), that defendant knowingly possessed the cocaine found in the vehicle in which he was apassenger (see People v Kinchen, 278 AD2d 874 [2000], lv denied 96 NY2d 760[2001]). Contrary to defendant's further contention, the instructions given to the grand jury wereproper (see generally People v Wooten, 283 AD2d 931, 932 [2001], lv denied 96NY2d 943 [2001]).
Although defendant has standing to challenge the search of the vehicle by virtue of thePeople's reliance on the statutory automobile presumption (see generally People vWesley, 73 NY2d 351, 360-362 [1989]), we reject his contention that County Court erred inrefusing to suppress the cocaine found in the vehicle. The police officer had reasonable suspicionfor the initial stop of the vehicle based upon information from an identified citizen informant thatthe driver of the vehicle was drinking alcohol and driving erratically (see People v Kirkey, 17 AD3d1149 [2005], lv denied 5 NY3d 764 [2005]; People v Hoffman, 283 AD2d928, 928-929 [2001], lv denied 96 NY2d 919 [2001]). The record establishes that thecodefendant consented to the search that yielded the cocaine, and there is no indication that hisconsent was coerced (see People v Hinds, 184 AD2d 579, 581 [1992], lv denied[*2]80 NY2d 832 [1992]). In any event, even assuming,arguendo, that the codefendant did not consent to the search of his vehicle, we conclude that,upon determining that he did not have a valid driver's license, the police were justified inimpounding the vehicle following his arrest for aggravated unlicensed operation of a motorvehicle (see People v Johnson, 1NY3d 252, 255 [2003]). The police then properly conducted an inventory search "pursuantto 'an established procedure clearly limiting the conduct of individual officers that assures thatthe searches are carried out consistently and reasonably' " (id. at 256; see People v Owens, 39 AD3d1260, 1261 [2007], lv denied 9 NY3d 849 [2007]; People v Jackson, 16 AD3d 1022,1023 [2005], lv denied 4 NY3d 854 [2005]), and thus the court properly concluded thatthe cocaine was discovered during that valid inventory search. We further conclude thatdefendant received meaningful representation (see generally People v Benevento, 91NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]).
Contrary to the contention of defendant in his pro se supplemental brief, the court did notabuse its discretion in discharging an absent juror after "a reasonably thorough inquiry" into heravailability established that she would not be available within two hours of the time at which thetrial was scheduled to resume (CPL 270.35 [2] [a]; see People v Jeanty, 94 NY2d 507,516-517 [2000], rearg denied 95 NY2d 849 [2000]; People v Kimes, 37 AD3d 1, 24 [2006], lv denied 8 NY3d881, 9 NY3d 846 [2007]). Defendant was not otherwise deprived of a fair trial based on thecumulative effect of alleged errors at trial. The sentence is not unduly harsh or severe.
We have considered the remaining contentions of defendant in his pro se supplemental briefand conclude that they are without merit. Present—Scudder, P.J., Hurlbutt, Smith, Faheyand Gorski, JJ.