| People v Foster |
| 2017 NY Slip Op 06292 [153 AD3d 853] |
| August 23, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v John Foster, Appellant. |
Laurette D. Mulry, Riverhead, NY (Felice B. Milani of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Rosalind C. Gray of counsel), forrespondent
Appeal by the defendant from a judgment of the County Court, Suffolk County (Collins, J.),rendered December 19, 2014, convicting him of criminal possession of a controlled substance inthe third degree and aggravated unlicensed operation of a motor vehicle in the third degree, upona jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing(Braslow, J.), of those branches of the defendant's omnibus motion which were to suppressphysical evidence and his statement to law enforcement officials.
Ordered that the judgment is affirmed.
The hearing court properly denied that branch of the defendant's omnibus motion which wasto suppress physical evidence recovered from his person. " '[A]s a general matter, thedecision to stop an automobile is reasonable where the police have probable cause to believe thata traffic violation has occurred,' even if the underlying reason for the stop was to investigateanother matter unrelated to the traffic violation" (People v Sluszka, 15 AD3d 421, 423 [2005], quoting People vRobinson, 97 NY2d 341, 348-349 [2001]; see People v Davis, 103 AD3d 810, 811 [2013]). "The credibilitydeterminations of a hearing court are entitled to great deference on appeal, and will not bedisturbed unless clearly unsupported by the record" (People v Martinez, 58 AD3d 870, 870-871 [2009]). The recordsupports the hearing court's determination to credit a police officer's testimony that he observedthe defendant make a right turn without signaling and while he was not wearing a seatbelt, whichjustified the stop of the defendant (seePeople v Golden, 149 AD3d 777 [2017]; People v Souris, 46 AD3d 711 [2007]). The officer had the right torequest that the defendant produce his driver license (see People v Graham, 54 AD3d 1056, 1058 [2008]; People v Leiva, 33 AD3d 1021,1022 [2006]; People v Irizarry, 282 AD2d 483, 483 [2001]). Upon learning that thedefendant had a suspended driver license, the officer had probable cause to arrest the defendant(see Vehicle and Traffic Law § 511 [1] [a]; People v Mercado, 120 AD3d 441,442 [2014], affd 25 NY3d 936 [2015]; People v Davis, 32 AD3d 445, 445 [2006]; People vMitchell, 303 AD2d 422, 423 [2003]; People v Irizarry, 282 AD2d at 483; Peoplev Tavarez, 277 AD2d 260 [2000]). Thus, suppression of the cocaine and other physicalevidence recovered from the defendant's person was not warranted, as it was recovered during asearch incident to a lawful arrest (see People v Troiano, 35 NY2d 476 [1974]; Peoplev Mercado, 120 AD3d at 442; People v Hurdle, 93 AD3d 419 [2012]; People v Lewis, 89 AD3d 1485[2011]; People v Tavarez, 277 AD2d 260 [2000]). Additionally, since the search of thedefendant and his arrest were lawful, his subsequent statements to the police cannot be deemedthe fruit of the poisonous tree subject to the exclusionary rule (see People v John, 119 AD3d 709,710 [2014]).
[*2] Further, contrary to the defendant'scontention, his statement to law enforcement officials that he had approximately 20 grams ofcocaine on him, made before Miranda warnings were given (see Miranda vArizona, 384 US 436 [1966]), was spontaneous and not triggered by any police questioningor other conduct which reasonably could have been expected to elicit a declaration from him (see People v Wallace, 128 AD3d866 [2015]; People v Powell,125 AD3d 1010, 1011 [2015], affd 27 NY3d 523 [2016]; People v Barley, 82 AD3d 996[2011]; People v Castro, 73 AD3d800, 801 [2010]). Accordingly, the hearing court properly denied that branch of thedefendant's omnibus motion which was to suppress this statement.
The defendant's contention that the evidence was legally insufficient to establish his guilt ofcriminal possession of a controlled substance in the third degree because the People failed toestablish beyond a reasonable doubt that he knowingly possessed a substance containing cocainethat had an aggregate weight of one-half ounce or more is not preserved for appellate review(see CPL 470.05 [2]; Penal Law § 220.16 [12]; People v Gray, 86NY2d 10 [1995]; People v Estrella, 303 AD2d 689 [2003]). In any event, this contention,and the defendant's contention that his conviction was against the weight of the evidence on thisground, are without merit. The People were not required to prove that the defendant hadknowledge of the aggregate weight of the controlled substance that he possessed (seePenal Law § 15.20 [4]; People v Ballard, 51 AD3d 1034, 1035 [2008]; People v Flemings, 6 AD3d 626,627 [2004]; People v Estrella, 303 AD2d 689 [2003]; People v Wilson, 245AD2d 402 [1997]). For this reason, his trial attorney was not ineffective for failing to preservethe defendant's challenge to the legal sufficiency of the evidence establishing that he knew theaggregate weight of the cocaine (seePeople v High, 119 AD3d 959, 960 [2014]). There can be no deprivation of effectiveassistance of counsel arising from the failure to make a motion or argument that had little or nochance of success (see People vEnnis, 11 NY3d 403, 415 [2008]; People v Witherspoon, 147 AD3d 985 [2017]). Mastro, J.P.,Leventhal, Miller and Brathwaite Nelson, JJ., concur.