| People v Thomas |
| 2020 NY Slip Op 01939 [181 AD3d 831] |
| March 18, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Michael Thomas, Appellant. |
Paul Skip Laisure, New York, NY (Sean H. Murray of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Merri Turk Lasky, and John F. McGoldrick of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Leslie Leach, J.), rendered June 23, 2015, convicting him of criminal possession of aweapon in the second degree, attempt to evade or defeat taxes on cigarettes, and unlawfulpossession of unstamped or unlawfully stamped cigarettes, upon a jury verdict, andimposing sentence. The appeal brings up for review the denial, after a hearing (KennethC. Holder, J.), of that branch of the defendant's omnibus motion which was to suppress agun recovered by the police. By decision and order of this Court dated December 26,2018, the matter was remitted to the Supreme Court, Queens County, for a newdetermination of that branch of the defendant's omnibus motion which was to suppress agun and thereafter a report to this Court advising of the new determination, and theappeal was held in abeyance in the interim (People v Thomas, 167 AD3d 1050 [2018]). The SupremeCourt, Queens County (Kenneth C. Holder, J.), has filed a report dated February 4,2019.
Ordered that the judgment is affirmed.
The defendant was charged, inter alia, with two counts of criminal possession of aweapon in the second degree, attempt to evade or defeat taxes on cigarettes, and unlawfulpossession of unstamped or unlawfully stamped cigarettes. In an omnibus motion, thedefendant moved, inter alia, to suppress a gun and cigarettes that the police recoveredfrom his vehicle.
At the suppression hearing, a police officer testified that he observed the defendantgive a carton of cigarettes to an unidentified individual in exchange for money. Thepolice officer and his partner approached the defendant, who was standing behind aminivan with the door to the minivan open. The police officers observed several duffelbags in the vehicle. One of the duffel bags was open and contained additional cigarettecartons. One of the officers opened the carton of cigarettes that had been exchanged. Thepacks of cigarettes in the carton had Georgia tax stamps and no New York tax stamps.The officers arrested the defendant. Since one of the police officers was going to drivethe defendant's vehicle to the police station, for safety, that officer performed a quickcheck of the defendant's vehicle. He found a loaded gun in a closed drawer under thefront passenger seat.
After a jury trial, the defendant was convicted of criminal possession of a weapon inthe second degree, attempt to evade or defeat taxes on cigarettes, and unlawfulpossession of unstamped or unlawfully stamped cigarettes. On appeal, the defendantchallenges, among other things, the denial of that branch of his omnibus motion whichwas to suppress the gun. However, the Supreme Court did not set forth the basis for itsdenial of that branch of the defendant's omnibus motion, and this Court was unable todetermine the unarticulated predicate for the court's evidentiary ruling (see People v Nicholson, 26NY3d 813, 817 [2016]). Therefore, in order to avoid exceeding our statutoryauthority pursuant to CPL 470.15 (1), we held the appeal in abeyance and remitted thematter to the Supreme Court, Queens County, for a new determination of that branch ofthe defendant's omnibus motion which was to suppress the gun. The Supreme Court hasfiled a report dated February 4, 2019.
We agree with the Supreme Court's determination that the warrantless search of thedefendant's vehicle was permissible under the automobile exception. "Pursuant to theautomobile exception to the warrant requirement, a warrantless search of a vehicle ispermitted when the police have probable cause to believe the vehicle containscontraband, a weapon, or evidence of a crime" (People v Vargas, 89 AD3d 771, 772 [2011]; see Peoplev Blasich, 73 NY2d 673, 678-679 [1989]). Here, the police had probable cause tobelieve that the defendant's vehicle, including the closed drawer under the frontpassenger seat, contained contraband, a weapon, or evidence of a crime, because thearresting officers witnessed the defendant selling cigarettes bearing Georgia tax stamps(see People v DiMatteo, 62AD3d 418, 419 [2009]; People v Quagliata, 53 AD3d 670, 671-672 [2008]; People v Eure, 46 AD3d386, 387 [2007]; People v Collado, 304 AD2d 836, 837 [2003]).
Contrary to the defendant's contention, he failed to establish that he received theineffective assistance of counsel at the suppression hearing (see US Const AmendVI; NY Const, art I, § 6; Strickland v Washington, 466 US 668, 687[1984]; People v Benevento, 91 NY2d 708, 713 [1998]; People v Baldi,54 NY2d 137, 147 [1981]).
The defendant failed to preserve for appellate review his challenge to the legalsufficiency of the evidence with respect to the convictions of attempt to evade or defeattaxes on cigarettes and unlawful possession of unstamped or unlawfully stampedcigarettes (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]). In anyevent, viewing the evidence in the light most favorable to the prosecution (see Peoplev Contes, 60 NY2d 620 [1983]), which included evidence that the officers recoveredfrom the defendant's minivan 273 cartons of cigarettes, each containing 10 packs of 20cigarettes, we find that it was legally sufficient to establish the defendant's guilt of thosecounts beyond a reasonable doubt. Moreover, upon the exercise of our factual reviewpower (see CPL 470.15 [5]), we are satisfied that the verdict of guilt on thosecounts was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348 [2007]; People v Romero, 7 NY3d633 [2006]). Mastro, J.P., Leventhal, Maltese and Connolly, JJ., concur.