| People v Calderon |
| 2012 NY Slip Op 01496 [92 AD3d 606] |
| February 28, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Martin Calderon, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Matthew T. Murphy of counsel), forrespondent.
Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered March 16, 2010,convicting defendant, after a jury trial, of criminal possession of a controlled substance in thethird degree, and sentencing him, as a second felony drug offender, to a term of 2½ years,unanimously affirmed.
The court properly denied defendant's suppression motion. Defendant argues that the policelacked the necessary predicate for requesting permission to search the car in which he was riding.At the suppression hearing, defendant raised other issues relating to the driver's consent.However, he never alerted the court to the particular issue raised on appeal, and the court did not"expressly decide[ ]" (CPL 470.05 [2]) that issue (see People v Turriago, 90 NY2d 77,83-84 [1997]; see also People vColon, 46 AD3d 260, 263 [2007]). Accordingly, we decline to review this claim in theinterest of justice. As an alternative holding, we find that the police had, at least, a sufficientbasis to ask the driver of the car for permission to search (see People v Brooks, 23 AD3d 847, 849 [2005], lv denied 6NY3d 810 [2006]; People v Martin,50 AD3d 1169 [2008]). Defendant complains that some of the People's arguments are raisedfor the first [*2]time on appeal. However, this is a consequence ofthe procedural posture of the case, in which defendant did not litigate the present issue. In anyevent, the People's arguments are supported by the hearing evidence. Concur—Friedman,J.P., Sweeny, Renwick, DeGrasse and RomÁn, JJ.