| People v Mills |
| 2012 NY Slip Op 01924 [93 AD3d 1198] |
| March 16, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Kenny Mills,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), rendered July21, 2008. The judgment convicted defendant, upon a nonjury verdict, of criminal possession of acontrolled substance in the third degree, criminal possession of a controlled substance in the fifthdegree and criminal possession of a controlled substance in the seventh degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, following a nonjury trial,of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1]) and related offenses. County Court properly denied defendant's motion seeking suppressionof physical evidence seized by police officers from his person and his vehicle. Contrary todefendant's contention, the approach of the vehicle by the police officer was "justified by an'articulable basis,' meaning 'an objective, credible reason not necessarily indicative of criminality'" (People v Grady, 272 AD2d 952 [2000], lv denied 95 NY2d 905 [2000],quoting People v Ocasio, 85 NY2d 982, 985 [1995]). The officer observed the vehicle at2:30 a.m. parked with the engine running in an area known for drug activity and, after checkingthe records on the license plate, the officer learned that the vehicle was registered to a parolee.He thus had articulable bases for approaching the vehicle and requesting information (see People v Gandy, 85 AD3d1595 [2011], lv denied 17 NY3d 859 [2011]; Grady, 272 AD2d 952). Theofficer acquired the requisite probable cause to search defendant and the vehicle when he lookedinto the vehicle and observed what appeared to be baggies of marihuana in plain view (seeGandy, 85 AD3d at 1596; Grady, 272 AD2d 952). Contrary to defendant's furthercontention, minor discrepancies in the suppression hearing testimony of that officer and thebackup officer who arrived at the scene do not warrant disturbing the court's determination (see People v Weems, 61 AD3d472 [2009], lv denied 13 NY3d 750 [2009]).
By failing to renew his motion for a trial order of dismissal after presenting the testimony ofa witness, defendant failed to preserve for our review his contention that the evidence is legallyinsufficient to establish his intent to sell the marihuana (see People v Hines, 97 NY2d 56,61 [2001]). In any event, that contention lacks merit (see People v James, 90 AD3d 1249 [2011]; People v [*2]Brown, 52 AD3d 1175, 1177 [2008], lv denied 11NY3d 923 [2009]). Further, in view of our determination that the evidence is legally sufficient tosupport the conviction, defendant has failed to establish that a renewed motion for a trial order ofdismissal " 'would be meritorious upon appellate review,' " and thus we reject defendant'scontention that he was denied effective assistance of counsel based upon defense counsel's failureto renew the motion (People vCarrasquillo, 71 AD3d 1591, 1591 [2010], lv denied 15 NY3d 803 [2010]; see People v Donaldson, 89 AD3d1472, 1473 [2011]). Finally, viewing the evidence in light of the elements of the crimes inthis nonjury trial (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against theweight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Present—Smith, J.P., Fahey, Lindley and Martoche, JJ.