Opinion
176 KA 15–00972
04-27-2018
The PEOPLE of the State of New York, Respondent, v. Tiyhise HUDDLESTON, Jr., Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SARA A. GOLDFARB OF COUNSEL), FOR DEFENDANT–APPELLANT. TIYHISE HUDDLESTON, JR., DEFENDANT–APPELLANT PRO SE. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (NICOLE K. INTSCHERT OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SARA A. GOLDFARB OF COUNSEL), FOR DEFENDANT–APPELLANT.
TIYHISE HUDDLESTON, JR., DEFENDANT–APPELLANT PRO SE.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (NICOLE K. INTSCHERT OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:
On appeal from a judgment convicting him upon a jury verdict of criminal possession of a controlled substance in the fourth degree ( Penal Law § 220.09[1] ), defendant contends in his pro se supplemental brief that County Court erred in refusing to suppress the evidence obtained by the police following the stop of the vehicle in which he was a passenger. We reject that contention. As defendant correctly concedes, the police properly stopped the vehicle for a violation of Vehicle and Traffic Law § 375(1)(b)(i) and, regardless of whether the stop was pretextual, it was lawful inasmuch as the police had probable cause to believe that the driver of the vehicle had committed a traffic violation (see People v. Pealer, 89 A.D.3d 1504, 1506, 933 N.Y.S.2d 473 [4th Dept. 2011], affd 20 N.Y.3d 447, 962 N.Y.S.2d 592, 985 N.E.2d 903 [2013], cert denied 571 U.S. 846, 134 S.Ct. 105, 187 L.Ed.2d 77 [2013], rearg. denied 24 N.Y.3d 993, 997 N.Y.S.2d 105, 21 N.E.3d 556 [2014] ).
Following the lawful stop of the vehicle, the police determined that neither the driver nor defendant had a valid driver's license. "At that point, the [police] had a reasonable suspicion either that the vehicle had been operated by an unlicensed driver, or that the vehicle was soon going to be operated by an unlicensed driver, and thus its ... towing was lawful" ( People v. Witt, 129 A.D.3d 1449, 1450, 11 N.Y.S.3d 767 [4th Dept. 2015], lv denied 26 N.Y.3d 937, 17 N.Y.S.3d 100, 38 N.E.3d 846 [2015] ; see People v. Wilburn, 50 A.D.3d 1617, 1618, 856 N.Y.S.2d 767 [4th Dept. 2008], lv denied 11 N.Y.3d 742, 864 N.Y.S.2d 401, 894 N.E.2d 665 [2008] ; People v. Cochran, 22 A.D.3d 677, 677, 804 N.Y.S.2d 346 [2d Dept. 2005], lv denied 6 N.Y.3d 753, 810 N.Y.S.2d 421, 843 N.E.2d 1161 [2005] ). Contrary to defendant's contention, given the terms of the police department's written policy that was received in evidence at the suppression hearing and the testimony of one of the police officers that the decision to tow the vehicle was made in accordance with that policy, which we note was in conformance with applicable law (see generally Witt, 129 A.D.3d at 1450, 11 N.Y.S.3d 767 ; Wilburn, 50 A.D.3d at 1618, 856 N.Y.S.2d 767 ), we conclude that the officers' decision to tow the vehicle was lawful (see People v. Tardi, 28 N.Y.3d 1077, 1078–1079, 44 N.Y.S.3d 366, 66 N.E.3d 1084 [2016] ; People v. Gabriel, 155 A.D.3d 1438, 1440–1441, 66 N.Y.S.3d 359 [3d Dept. 2017] ). Moreover, "[t]he record does not support defendant's contention that the [corresponding] inventory search was a mere pretext to uncover incriminating evidence; rather, the testimony established that the [officers'] ‘intention for the search was to inventory the items in the vehicle’ " ( People v. Morman, 145 A.D.3d 1435, 1436, 43 N.Y.S.3d 619 [4th Dept. 2016], lv denied 29 N.Y.3d 999, 57 N.Y.S.3d 721, 80 N.E.3d 414 [2017], quoting People v. Padilla, 21 N.Y.3d 268, 273, 970 N.Y.S.2d 486, 992 N.E.2d 414 [2013], cert denied 571 U.S. 889, 134 S.Ct. 325, 187 L.Ed.2d 158 [2013] ).
Defendant further contends in his pro se supplemental brief that suppression is warranted because an officer's trial testimony established for the first time that defendant was subjected to an illegal pat frisk, which unreasonably prolonged his detention and revealed no evidence of criminality. That contention is not properly before us. " ‘Where, as here, the defendant fails to move to reopen a suppression hearing, he or she may not rely upon the trial testimony to challenge the suppression ruling’ " ( People v. Mosca, 294 A.D.2d 938, 939, 741 N.Y.S.2d 780 [4th Dept. 2002], lv denied 99 N.Y.2d 538, 752 N.Y.S.2d 599, 782 N.E.2d 577 [2002] ; see People v. Gonzalez, 55 N.Y.2d 720, 721–722, 447 N.Y.S.2d 145, 431 N.E.2d 630 [1981], rearg. denied 55 N.Y.2d 1038, 449 N.Y.S.2d 1030, 434 N.E.2d 1081 [1982], cert denied 456 U.S. 1010, 102 S.Ct. 2304, 73 L.Ed.2d 1306 [1982] ). Defendant's contention that the police otherwise unreasonably prolonged the traffic stop is not preserved for our review because he did not raise his contention before the suppression court (see CPL 470.05[2] ). In any event, we conclude that defendant's contention lacks merit inasmuch as there is no evidence that the police " ‘inordinately prolong[ed] the detention beyond what was reasonable under the circumstances’ " ( People v. Hale, 130 A.D.3d 1540, 1541, 14 N.Y.S.3d 603 [4th Dept. 2015], lv denied 26 N.Y.3d 1088, 23 N.Y.S.3d 645, 44 N.E.3d 943 [2015], reconsideration denied 27 N.Y.3d 998, 38 N.Y.S.3d 108, 59 N.E.3d 1220 [2016] ; see People v. Rainey, 49 A.D.3d 1337, 1339, 853 N.Y.S.2d 807 [4th Dept. 2008], lv denied 10 N.Y.3d 963, 863 N.Y.S.2d 147, 893 N.E.2d 453 [2008] ; cf. People v. Banks, 85 N.Y.2d 558, 562–563, 626 N.Y.S.2d 986, 650 N.E.2d 833 [1995], cert denied 516 U.S. 868, 116 S.Ct. 187, 133 L.Ed.2d 124 [1995] ; People v. Porter, 136 A.D.3d 1344, 1345, 24 N.Y.S.3d 470 [4th Dept. 2016] ).
We reject defendant's contention in his main and pro se supplemental briefs that he was denied effective assistance of counsel. We conclude that defendant did not meet his burden of establishing "that his attorney ‘failed to provide meaningful representation’ that compromised ‘his right to a fair trial’ " ( People v. Pavone, 26 N.Y.3d 629, 647, 26 N.Y.S.3d 728, 47 N.E.3d 56 [2015] ). To the extent that defendant's claims of ineffective assistance of counsel in his main brief involve matters outside the record, they must be raised by way of a motion pursuant to CPL article 440 (see People v. Lopez–Mendoza, 155 A.D.3d 526, 526–527, 65 N.Y.S.3d 519 [1st Dept. 2017] ; People v. Murray, 154 A.D.3d 881, 882–883, 63 N.Y.S.3d 82 [2d Dept. 2017], lv denied 30 N.Y.3d 1118, 77 N.Y.S.3d 343, 101 N.E.3d 984 [2018] ).
Defendant failed to preserve for our review his contention in his main brief that the court in sentencing him penalized him for exercising his right to a trial, "inasmuch as [he] failed to raise that contention at sentencing" ( People v. Stubinger, 87 A.D.3d 1316, 1317, 929 N.Y.S.2d 813 [4th Dept. 2011], lv denied 18 N.Y.3d 862, 938 N.Y.S.2d 869, 962 N.E.2d 294 [2011] ; see People v. Pope, 141 A.D.3d 1111, 1112, 33 N.Y.S.3d 812 [4th Dept. 2016], lv denied 29 N.Y.3d 951, 54 N.Y.S.3d 382, 76 N.E.3d 1085 [2017] ). In any event, that contention lacks merit. " ‘Given that the quid pro quo of the bargaining process will almost necessarily involve offers to moderate sentences that ordinarily would be greater, it is also to be anticipated that sentences handed out after trial may be more severe than those proposed in connection with a plea’ " ( People v. Martinez, 26 N.Y.3d 196, 200, 21 N.Y.S.3d 196, 42 N.E.3d 693 [2015] ). Here, contrary to defendant's contention, "[t]here is no evidence that defendant was given the lengthier sentence solely as a punishment for exercising his right to a trial" ( People v. Aikey, 94 A.D.3d 1485, 1486, 943 N.Y.S.2d 702 [4th Dept. 2012], lv denied 19 N.Y.3d 956, 950 N.Y.S.2d 108, 973 N.E.2d 206 [2012] [internal quotation marks omitted]; see Pope, 141 A.D.3d at 1112, 33 N.Y.S.3d 812). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.