People v Rodriguez

2008 NY Slip Op 05363

Decided on June 12, 2008

Appellate Division, First Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 12, 2008
Tom, J.P., Saxe, Friedman, Buckley, Catterson, JJ.
3912 1990/06 3913 1990/06






Steven Banks, The Legal Aid Society, New York (Jonathan
Garelick of counsel), for Jose Antonio Rodriguez, appellant.
Robert S. Dean, Center for Appellate Litigation, New York
(Seon Jeong Lee of counsel), for Carlos Vargas, appellant.
Robert M. Morgenthau, District Attorney, New York (Patricia
Curran of counsel), for respondent.

Judgments, Supreme Court, New York County (Carol Berkman, J. at suppression hearing; Edward J. McLaughlin, J. at jury trial and sentence), rendered December 13, 2006, convicting defendants of criminal possession of a controlled substance in the first degree, and sentencing them to terms of 10 years, unanimously affirmed.

The hearing court properly denied defendants' suppression motions. The court, which saw and heard the witnesses, credited testimony that an officer smelled and observed marijuana during a lawful traffic stop. There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v Prochilo, 41 NY2d 759, 761 [1977]).

The trial court properly exercised its discretion in accepting a partial verdict as to the first-degree possession count (based on weight) and dismissing the third-degree possession count (based on intent to sell) without inquiring as to whether further deliberations on the latter charge would be fruitful (see People v Mendez, 221 AD2d 162, 163 [1995], lv denied 87 NY2d 923 [1996]). Nothing in the jury's communications with the court suggested any lack of unanimity, or need for further deliberations or guidance, regarding the first-degree count. Since the court dismissed the third-degree count (which was, in any event, a noninclusory concurrent count), [*2]defendants were not prejudiced by the court's termination of deliberations on that count (see People v Stewart, 210 AD2d 161 [1994], lv denied 85 NY2d 980 [1995]). Defendants' argument that further deliberations on the entire case might have resulted in a different verdict as to first-degree possession is speculative.

We perceive no basis for reducing the sentence of either defendant.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 12, 2008

CLERK