| People v Collins |
| 2013 NY Slip Op 02888 [105 AD3d 1378] |
| April 26, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vFreddie O. Collins, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.),rendered December 9, 2009. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a weapon in the second degree (four counts) and criminalpossession of a weapon in the third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of four counts of criminal possession of a weapon in the second degree (PenalLaw § 265.03 [1] [b]; [3]) and two counts of criminal possession of a weapon inthe third degree (§ 265.02 [1]). Contrary to defendant's contention, County Courtproperly instructed the jury on counts one through three of the indictment with respect tothe automobile presumption (see § 265.15 [3]). Those counts concernedthe sawed-off shotgun recovered from the vehicle in which defendant was a passengerand, in this case, there was no "clearcut" evidence at trial that the shotgun was found inthe possession of a specified passenger in the vehicle other than defendant (People vLemmons, 40 NY2d 505, 511 [1976]). In such circumstances, the "[automobile]presumption's applicability is properly left to the trier of fact under an appropriatecharge" (id. at 512).
We reject defendant's further contention that the suppression court erred indetermining that the traffic stop was permissible. It is well established that the police maylawfully stop a vehicle for a traffic infraction of excessively tinted windows (seePeople v McGriff, 219 AD2d 829, 830 [1995]). In this case, the testimony adducedat the suppression hearing established that the police officers' traffic stop was supportedby the requisite probable cause to believe that there had been a violation of Vehicle andTraffic Law § 375 (12-a) (b) (see People v Estrella, 48 AD3d 1283, 1285 [2008],affd 10 NY3d 945 [2008], cert denied 555 US 1032 [2008]; see also People v Binion, 100AD3d 1514, 1515 [2012]). Specifically, one of the officers testified that the vehiclehad "dark tinted windows" and that he could "just barely see that there was an occupantin the driver's seat."
As defendant correctly concedes, he failed to preserve for our review his contentionthat the court erred by instructing the jury with respect to constructive possession (see People v Carr, 59 AD3d945, 946 [2009], affd 14 NY3d 808 [2010]), and we decline to exercise ourpower to review that contention as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]). We further [*2]conclude thatdefendant was not denied effective assistance of counsel based on defense counsel'sfailure to object to the charge (see generally People v Baldi, 54 NY2d 137, 147[1981]).
Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P.,Fahey, Sconiers, Valentino and Whalen, JJ.