| People v Wingate |
| 2010 NY Slip Op 00890 [70 AD3d 734] |
| February 2, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v BlakeWingate, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y.Brodt, and John F. McGoldrick of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Spires, J.),rendered July 27, 2005, convicting him of criminal possession of stolen property in the fourthdegree and criminal possession of a controlled substance in the seventh degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is modified, on the law and as a matter of discretion in the interestof justice, by vacating the conviction of criminal possession of stolen property in the fourthdegree and the sentence imposed thereon, and dismissing that count of the indictment; as somodified, the judgment is affirmed.
Although the defendant's contention that the evidence was legally insufficient to establishthat he was in possession of the stolen van is not preserved for appellate review (see CPL470.05 [2]; People v Hawkins, 11NY3d 484, 492 [2008]; People v Gray, 86 NY2d 10, 19-21 [1995]), we neverthelessreach the contention in the exercise of our interest of justice jurisdiction (see CPL 470.15[3] [c]), and vacate the conviction of criminal possession of stolen property in the fourth degree(see Penal Law § 165.45 [5]). Viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that theevidence that the defendant was briefly seated in the parked van before the police arrived wasinsufficient to establish the element of possession, as a person's mere presence in a vehicle doesnot support a rational inference that he or she exercised dominion and control over it (seePenal Law § 10.00 [8]; People v Rivera, 82 NY2d 695 [1993]; Matter ofGary S., 197 AD2d 580, 581 [1993]; People v Gregory, 147 AD2d 497 [1989];People v Brown, 115 AD2d 791 [1985]).
While the suppression court failed to conduct a proper waiver colloquy prior to permittingthe defendant to represent himself during the pretrial suppression hearing, the record as a wholedemonstrates that the defendant made a knowing, voluntary, and intelligent decision to waive hisright to counsel and proceed pro se (seePeople v Providence, 2 NY3d 579, 582-583 [2004]; People v Bailey, 27 AD3d 572 [2006]; see also People vArroyo, 98 NY2d 101, 104 [2002]).
The defendant's remaining contentions are without merit, or need not be reached in light[*2]of our determination. Skelos, J.P., Santucci, Dickerson andRoman, JJ., concur.