| People v Wilburn |
| 2008 NY Slip Op 03919 [50 AD3d 1617] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Andre J.Wilburn, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Patrick H. Fierro of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Dennis M. Kehoe, J.), renderedMarch 17, 2005. The judgment convicted defendant, upon a jury verdict, of criminal possessionof a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, after a jury trial, ofcriminal possession of a weapon in the third degree (Penal Law § 265.02 [former (4)]). Wereject the contention of defendant that County Court erred in refusing to suppress the physicalevidence seized during an inventory search of his vehicle. The People presented evidence at thesuppression hearing establishing that the police lawfully stopped defendant for a Vehicle andTraffic Law violation and, upon determining that he was an unlicensed driver and that thepassenger in the vehicle also was unable to drive it, the police properly impounded the vehicle.Contrary to defendant's contention, the police were not required to explore alternatives toimpoundment (see People vSchwing, 13 AD3d 725, 725-726 [2004]; People v Walker, 267 AD2d 994[1999], lv denied 94 NY2d 953 [2000], citing Colorado v Bertine, 479 US 367,373-374 [1987]). The police officer who conducted the inventory search upon impounding thevehicle followed the written procedures mandated by the City of Rochester Police Department(see People v Galak, 80 NY2d 715 [1993]; People v Scott, 210 AD2d 920, 921[1994], lv denied 85 NY2d 942 [1995]), and the search was reasonable (cf.Galak, 80 NY2d at 718-721). Further, the inventory search was not rendered invalid by theofficer's alleged failure to catalogue every item in the vehicle (see People v Owens, 39 AD3d1260, 1261 [2007], lv denied 9 NY3d 849 [2007]; Walker, 267 AD2d at995).
The court properly denied the motion of defendant to sever his trial from that of hiscodefendant. Defendant's motion was untimely, and defendant failed to show good cause forbringing his motion 10 months after the indictment was filed (see CPL 255.20 [3]; seegenerally People v Bornholdt, 33 NY2d 75, 87-88 [1973], cert denied 416 US 905[1974]). In any event, "severance is compelled where the core of each defense is in irreconcilableconflict with the other and where there is a significant danger, as both defenses are portrayed tothe trial court, that the conflict alone would lead the jury to infer defendant's guilt," and there wasno such showing by defendant in this case (People v Mahboubian, 74 NY2d 174, 184[1989]; cf. People v Cardwell, 78 [*2]NY2d 996, 997-998[1991]).
Finally, the verdict, based on the applicability of the automobile presumption (seePenal Law § 265.15 [3]; People v Carter, 34 AD3d 1342, 1343 [2006], lv denied 8NY3d 844 [2007]), is not against the weight of the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]), and the sentence is not unduly harsh or severe.Present—Scudder, P.J., Martoche, Smith, Lunn and Peradotto, JJ.