| People v Smith |
| 2015 NY Slip Op 09757 [134 AD3d 1568] |
| December 31, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vTimothy Smith, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Evan Hannay of counsel), fordefendant-appellant.
Timothy Smith, defendant-appellant pro se.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered November 15, 2012. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a controlled substance in the third degree, criminal possession of acontrolled substance in the fifth degree and criminal possession of a controlled substancein the seventh degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law, a new trial is granted on the second and third counts of the indictment, and thefourth count of the indictment is dismissed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of criminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]), the fifth degree (§ 220.06 [5]), and the seventhdegree (§ 220.03). The charges arose from the seizure of a baggiecontaining crack cocaine from a vehicle in which defendant was a passenger. Contrary todefendant's contention, we conclude that County Court properly refused to suppresstangible property, including the crack cocaine, as the product of an allegedly illegalsearch. The evidence at the suppression hearing supports the court's determination thatthe conduct of the police "was justified in its inception and at every subsequent stage ofthe encounter" (People v Nicodemus, 247 AD2d 833, 835 [1998], lvdenied 92 NY2d 858 [1998]; see People v De Bour, 40 NY2d 210, 215[1976]). The police officer had an objective, credible reason to approach the parkedvehicle and request information from its occupants (see People v Ocasio, 85NY2d 982, 985 [1995]; Peoplev Witt, 129 AD3d 1449, 1450 [2015], lv denied 26 NY3d 937 [2015]).After the officer observed defendant and another passenger acting suspiciously, theofficer was justified in opening the door and ordering the occupants out of the vehicle(see People v Carter, 60AD3d 1103, 1105 [2009], lv denied 12 NY3d 924 [2009]). The officer thenobserved the baggie containing crack cocaine, which provided probable cause to seizethe cocaine and arrest defendant (see People v Robinson, 38 AD3d 572, 573 [2007]).
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that "the verdict, based on the applicability ofthe automobile presumption . . . , is not against the weight of the evidence"(People v Campbell, 109AD3d 1142, 1142 [2013], lv denied 22 NY3d 1039 [2013]). We rejectdefendant's contention that the court erred in denying his request for substitution ofcounsel, inasmuch as defendant did not explicitly request new counsel (see People v Singletary, 63AD3d 1654, 1654 [2009], lv denied 13 NY3d 839 [2009]), nor did hisgeneral complaints concerning counsel constitute a showing of good cause for suchsubstitution (see People vWatkins, 77 AD3d 1403, 1404 [2010], lv denied 15 NY3d 956[2010]).
We agree with defendant, however, that the judgment of conviction should bereversed and a new trial granted because the court erred in summarily denying, asuntimely, his request to [*2]proceed pro se (seegenerally People v McIntyre, 36 NY2d 10, 14 [1974]). "Although requests [toproceed pro se] on the eve of trial are discouraged, the Court of Appeals has found that arequest may be considered timely when it is 'interposed prior to the prosecution's openingstatement,' as here" (People vAtkinson, 111 AD3d 1061, 1062 [2013], quoting McIntyre, 36 NY2d at18).
Finally, as the People correctly concede, the count of criminal possession of acontrolled substance in the seventh degree should be dismissed as a inclusory concurrentcount of either of the remaining charges (see CPL 300.30 [4]; 300.40 [3] [b];People v Lee, 39 NY2d 388, 390-391 [1976]).
In view of our decision, we do not address the remaining contentions in defendant'smain and pro se supplemental briefs. Present—Smith, J.P., Peradotto, Lindley,Whalen and DeJoseph, JJ.