| People v Taylor |
| 2008 NY Slip Op 10410 [57 AD3d 1504] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Tristan Taylor,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Raymond C. Herman of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.), renderedApril 24, 2007. The judgment convicted defendant, upon a jury verdict, of criminal possession of acontrolled substance in the fifth degree and failure to wear a seatbelt.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him of criminal possession of a controlledsubstance in the fifth degree (Penal Law § 220.06 [5]) and failure to wear a seatbelt (Vehicleand Traffic Law § 1229-c [3]), defendant contends that Supreme Court erred in refusing tosuppress his statements to the police because he had not waived his Miranda rights at the timethe statements were made. We reject that contention. Although defendant was in custody when thestatements were made inasmuch as he was handcuffed and under arrest, we conclude that hisstatements were spontaneous and that the postarrest actions of the police officers did not constitute thefunctional equivalent of interrogation (see People v Hann, 198 AD2d 904 [1993], lvdenied 83 NY2d 805 [1994]; see generally Rhode Island v Innis, 446 US 291, 300-302[1980]; People v Ferro, 63 NY2d 316, 322-323 [1984], cert denied 472 US 1007[1985]). We also reject the contention of defendant that the officers violated his constitutional rightswhen they searched and detained him prior to identifying him. The officers' observation that defendantwas not wearing a seatbelt was sufficient reason to stop the vehicle in which defendant was a passenger(see generally People v Ingle, 36 NY2d 413, 414 [1975]). Based on the failure of defendant toproduce identification, the police were justified "in arresting him to remove him to the police station andin frisking him before doing so" (People v Ellis, 62 NY2d 393, 396 [1984]; see People vCopeland, 39 NY2d 986 [1976]).
Defendant failed to preserve for our review his further contentions that he was deprived of his rightto be present at all material stages of the trial (see People v Robinson, 239 AD2d 258,260-261 [1997]; see generally People v Robles, 86 NY2d 763, 764-765 [1995]), and that hewas deprived of his right to respond to a jury request (see People v Peller, 8 AD3d 1123 [2004], lv denied 3 NY3d679 [2004]). We decline to exercise our power to review those contentions as a matter of discretion inthe interest of justice (see [*2]CPL 470.15 [6] [a]). We rejectdefendant's contention that the conviction is not supported by legally sufficient evidence (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). Contrary to the contention of defendant,the People established that he "exercised dominion or control over the property by a sufficient level ofcontrol over the area in which the contraband [was] found" (People v Pichardo, 34 AD3d 1223, 1224 [2006], lv denied 8NY3d 926 [2007] [internal quotation marks omitted]). Furthermore, we conclude that the verdict is notagainst the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]).
Contrary to defendant's further contention, the court's charge on the issue of constructivepossession did not change the theory of the People's case from that set forth in the indictment and bill ofparticulars (see People v Charles, 61 NY2d 321, 327-329 [1984]). We also rejectdefendant's Batson challenge. The prosecutor offered legitimate, nonpretextual reasons forexercising a peremptory challenge with respect to an African-American prospective juror (seegenerally People v Smocum, 99 NY2d 418, 422-423 [2003]). Finally, the sentence is not undulyharsh or severe. Present—Martoche, J.P., Smith, Centra, Green and Pine, JJ.