| People v Jones |
| 2009 NY Slip Op 04508 [63 AD3d 1582] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Terrence X.Jones, Appellant. |
—[*1] Terrence X. Jones, defendant-appellant pro se. Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Peter L. Broderick, Sr., J.), renderedMay 23, 2007. The judgment convicted defendant, upon a jury verdict, of criminal possession ofa controlled substance in the fourth degree and resisting arrest.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofcriminal possession of a controlled substance in the fourth degree (Penal Law § 220.09[1]) and resisting arrest (§ 205.30). We reject the contention of defendant that CountyCourt erred in refusing to suppress the cocaine found on his person following the arrest. Greatdeference is to be accorded "the determination of the suppression court with its peculiaradvantages of having seen and heard the witnesses" (People v Prochilo, 41 NY2d 759,761 [1977]), and we see no reason to disturb the court's determination. The evidence presented atthe suppression hearing established that the police lawfully stopped the vehicle driven bydefendant inasmuch as they had reasonable suspicion to believe that he had just participated in adrug transaction (see People v Spencer, 84 NY2d 749, 753 [1995], cert denied516 US 905 [1995]; People vWhite, 27 AD3d 1181 [2006]). The subsequent arrest of defendant and the frisk of hisperson were valid based on the existence of an outstanding warrant for his arrest (see Peoplev Troiano, 35 NY2d 476, 478 [1974]; People v Boone, 269 AD2d 459 [2000], lvdenied 95 NY2d 850, 961 [2000]; see also People v Ebron, 275 AD2d 490, 491[2000], lv denied 95 NY2d 934 [2000]).
Defendant's challenge to the legality of the warrant is not preserved for our review (seegenerally People v Gonzalez, 55 NY2d 887 [1982]), and we decline to exercise our power toreview that contention as a matter of discretion in the interest of justice (see CPL 470.15[6] [a]). Defendant also failed to preserve for our review the contention in his pro sesupplemental brief that the absence of any description of defendant in the radio communicationbetween the police dispatcher and the detective who stopped defendant's vehicle rendered hisarrest illegal (see generally Gonzalez, 55 NY2d 887 [1982]), and we likewise decline toexercise our power to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). To the extent that defendant contends in his pro sesupplemental brief that defense counsel was ineffective [*2]infailing to preserve that contention for our review, we reject that contention (see generally People v Caban, 5 NY3d143, 152 [2005]; People v Baldi, 54 NY2d 137, 147 [1981]).
We further conclude that, viewing the evidence in light of the elements of the crimes ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Also contrary todefendant's contention, the sentence is not unduly harsh or severe.
The further contention of defendant in his pro se supplemental brief that he was denied a fairtrial by prosecutorial misconduct on summation is not preserved for our review (see CPL470.05 [2]). In any event, we conclude that the challenged comments fall "within the latitudeafforded to attorneys in advocating their cause" (People v Halm, 81 NY2d 819, 821[1993]). Finally, the remaining contentions of defendant in his pro se supplemental brief involvematters outside the record on appeal and thus are properly raised by way of a motion pursuant toCPL article 440 (see generally People vCarlisle, 50 AD3d 1451 [2008], lv denied 10 NY3d 957 [2008]).Present—Scudder, P.J., Martoche, Fahey, Peradotto and Green, JJ.