| People v Estivarez |
| 2014 NY Slip Op 07813 [122 AD3d 1292] |
| November 14, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vPablo Estivarez, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Maria Maldonado of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered March 21, 2011. The judgment convicted defendant, upon a jury verdict,of criminal possession of marihuana in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict ofcriminal possession of marihuana in the third degree (Penal Law § 221.20),defendant contends that Supreme Court erred in refusing to suppress marihuana seizedby the police from the vehicle in which defendant was a passenger following a trafficstop. Defendant sought suppression of the marihuana on the ground that it was theproduct of an illegal search of a locked container within the trunk of the vehicle, and henow contends for the first time on appeal that the officer who stopped the vehicle gavetestimony " 'patently tailored to nullify constitutional objections' " withrespect to the traffic stop (People v Lebron, 184 AD2d 784, 784 [1992]). Thatcontention therefore is not preserved for our review (see CPL 470.05 [2]; People v Buckman, 66 AD3d1400, 1401 [2009], lv denied 13 NY3d 937 [2010]), and is without merit inany event. The hearing record supports the court's determination that the officer lawfullystopped the vehicle for having an inadequate muffler in violation of Vehicle and TrafficLaw § 375 (31) (see People v Thomas, 210 AD2d 269, 269-270[1994], lv denied 84 NY2d 1039 [1995]).
Viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's further contention that the verdict isagainst the weight of the evidence (see People v Velez, 78 AD3d 1522, 1522 [2010]; seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). Present—Scudder,P.J., Centra, Lindley, Sconiers and DeJoseph, JJ.