| People v Eron |
| 2014 NY Slip Op 05080 [119 AD3d 1358] |
| July 3, 2014 |
| Appellate Division, Fourth Department |
[*1]
| 1 The People of the State of New York, Respondent, vChristopher H. Eron, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Caitlin M. Connelly of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.),rendered September 7, 2012. The judgment convicted defendant, upon a jury verdict, ofaggravated unlicensed operation of a motor vehicle in the first degree and failure to staywithin a single lane.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of,inter alia, aggravated unlicensed operation of a motor vehicle in the first degree (Vehicleand Traffic Law § 511 [3] [a] [i]), defendant initially contends that CountyCourt erred in denying his motion to suppress his statements and other evidence seized asthe result of the allegedly unlawful stop of his vehicle. Contrary to defendant'scontention, the court properly denied that motion. Affording great deference to thecourt's resolution of credibility issues at the suppression hearing (see generally Peoplev Prochilo, 41 NY2d 759, 761 [1977]), we conclude that the record supports thecourt's finding that the police officer lawfully stopped defendant's car for crossing thewhite fog line in violation of Vehicle and Traffic Law § 1128 (a) (see People v Tandle, 71 AD3d1176, 1177-1178 [2010], lv denied 15 NY3d 757 [2010]; People vWohlers, 138 AD2d 957, 957 [1988]; see generally Whren v United States,517 US 806, 810 [1996]; People v Robinson, 97 NY2d 341, 348-349[2001]).
Defendant failed to preserve for our review his contention that the verdict wasinconsistent inasmuch as he failed to object to the alleged inconsistency before the jurywas discharged (see People v Alfaro, 66 NY2d 985, 987 [1985]). In any event,we conclude that defendant's contention is without merit (see generally People vTucker, 55 NY2d 1, 6-8 [1981], rearg denied 55 NY2d 1039 [1982]).
Defendant also failed to preserve for our review his challenge to the legal sufficiencyof the evidence inasmuch as he failed to renew his motion for a trial order of dismissalafter presenting evidence (see People v Hines, 97 NY2d 56, 61 [2001], reargdenied 97 NY2d 678 [2001]). In any event, that challenge lacks merit (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). Viewing the evidence inlight of the elements of the crime and traffic infraction as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we further conclude that the verdict is not against theweight of the evidence (see generally Bleakley, 69 NY2d at 495). "[R]esolutionof issues of [*2]credibility, as well as the weight to beaccorded to the evidence presented, are primarily questions to be determined by the jury"(People v Witherspoon, 66AD3d 1456, 1457 [2009], lv denied 13 NY3d 942 [2010] [internal quotationmarks omitted]) and, here, we see no reason here to disturb the jury's resolution of thoseissues.
Defendant failed to object when a prosecution witness was permitted to testify whilewearing his National Guard uniform, and thus failed to preserve for our review hiscontention that he was thereby denied due process (see generally People v Smikle, 112 AD3d 1357, 1358[2013], lv denied 22 NY3d 1141 [2014]; People v Caldwell, 98 AD3d 1272, 1272 [2012], lvdenied 20 NY3d 985 [2012]). In addition, defendant did not ask that the jury beinstructed that the witness was not more credible merely because he was wearing auniform, and thus he also failed to preserve for our review his contention that the courtshould have issued such an instruction (see generally People v Montero, 100 AD3d 1555, 1556[2012], lv denied 21 NY3d 945 [2013]; People v Perez, 89 AD3d 1393, 1394 [2011], lvdenied 18 NY3d 961 [2012]). We decline to exercise our power to review thosecontentions as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]).
The sentence is not unduly harsh or severe. We have considered defendant'sremaining contentions and conclude that they are without merit. Present—Smith,J.P., Centra, Carni, Whalen and DeJoseph, JJ.