| People v Gibson |
| 2016 NY Slip Op 02193 [137 AD3d 1657] |
| March 25, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Brandon L. Gibson, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Deborah K. Jessey of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.),rendered April 2, 2013. The judgment convicted defendant, after a nonjury trial, ofcriminal possession of a weapon in the second degree, aggravated unlicensed operationof a motor vehicle in the third degree and a traffic infraction.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by vacating the sentence imposed on count two of the indictment and imposing adefinite sentence of 30 days of imprisonment on that count, to run concurrently with thesentences imposed on the remaining counts, and as modified the judgment isaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjuryverdict of, inter alia, criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]) and aggravated unlicensed operation of a motor vehicle in thethird degree (Vehicle and Traffic Law § 511 [1] [a]). Defendant contendsthat County Court erred in refusing to suppress his statement to the police and tangibleevidence, i.e., a loaded firearm, seized from the passenger of his vehicle. We reject thatcontention. "Affording great deference to the court's resolution of credibility issues at thesuppression hearing" (People vEron, 119 AD3d 1358, 1359 [2014], lv denied 24 NY3d 1083 [2014]),we conclude that the record supports the court's finding that the police lawfully stoppeddefendant's vehicle for having an inadequate muffler in violation of Vehicle and TrafficLaw § 375 (31) (see People v Estivarez, 122 AD3d 1292, 1292-1293[2014], lv denied 26 NY3d 967 [2015]; see generally People v Wright, 98NY2d 657, 658-659 [2002]). We also reject any challenge by defendant to the legality ofthe police search that resulted in the seizure of the firearm from the passenger. Weconclude that defendant " 'lacks standing to challenge the search of [thepassenger], since [defendant] was not the person against whom the search was directed[,]and he cannot complain that his constitutional privacy protections have been infringed asa result of [the search of the passenger]' " (People v Hogue, 133 AD3d 1209, 1212 [2015]; see People v Douglas, 23AD3d 1151, 1152 [2005], lv denied 6 NY3d 812 [2006]; People vPeterson, 245 AD2d 815, 817 n 1 [1997]).
By making only a general motion for a trial order of dismissal, defendant failed topreserve for our review his contention that the trial evidence is legally insufficient toestablish that he possessed the firearm (see People v Gray, 86 NY2d 10, 19[1995]). In any event, that contention lacks merit (see People v Hailey, 128 AD3d 1415, 1416 [2015], lvdenied 26 NY3d 929 [2015]; see generally People v Bleakley, 69 NY2d 490,495 [1987]). Moreover, inasmuch as defendant's conviction is " 'supported bylegally sufficient trial evidence, [his] challenges to . . . the instructions givenduring [the grand jury] proceeding are precluded' " (People v Cotton, 120 AD3d1564, 1566 [2014]).
Viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's contention that the verdict is againstthe weight of the evidence (see generally Bleakley, 69 NY2d at 495). Evenassuming, arguendo, that a different verdict would not have been unreasonable (seeDanielson, 9 NY3d at [*2]348), we conclude that,"[b]ased on the weight of the credible evidence, the court . . . was justifiedin finding . . . defendant guilty beyond a reasonable doubt" (id.).Contrary to defendant's contention, the testimony of the passenger with respect todefendant's possession of the firearm "was not incredible as a matter of law, i.e.,'impossible of belief because it [was] manifestly untrue, physically impossible, contraryto experience, or self-contradictory' " (Hailey, 128 AD3d at 1417; see People v Carr, 99 AD3d1173, 1174 [2012], lv denied 20 NY3d 1010 [2013]). We further concludethat, to the extent that the People's evidence included improper bolstering testimony, anyerror in admitting that testimony is harmless (see People v Robinson, 21 AD3d 1413, 1414 [2005], lvdenied 5 NY3d 885 [2005]; see generally People v Crimmins, 36 NY2d 230,241-242 [1975]). We reject defendant's further contention that he was denied meaningfulrepresentation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).
Finally, although not raised by defendant, we note that the sentence imposed oncount two of the indictment, i.e., a six-month definite term of imprisonment for thecharge of aggravated unlicensed operation of a motor vehicle in the third degree, anunclassified misdemeanor, is illegal (see Vehicle and Traffic Law§ 511 [1] [b]; see also Penal Law § 70.15 [3]).Inasmuch as we cannot allow an illegal sentence to stand (see People v Daniels, 125AD3d 1432, 1433 [2015], lv denied 25 NY3d 1071 [2015],reconsideration denied 26 NY3d 928 [2015]), in the interest of judicial economy,we exercise our inherent authority to correct the illegal sentence (see id.). Wetherefore modify the judgment by vacating the sentence imposed on count two of theindictment and imposing a definite sentence of 30 days of imprisonment on that count, torun concurrently with the sentences imposed on the remaining counts (see People v Brown, 132AD3d 1274, 1275 [2015]; Daniels, 125 AD3d at 1433).Present—Whalen, P.J., Peradotto, Carni, Lindley and DeJoseph, JJ.