Opinion
940 KA 18-00156
02-03-2023
The PEOPLE of the State of New York, Respondent, v. Oswald MCPHERSON, Jr., Defendant-Appellant.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. OSWALD MCPHERSON, JR., DEFENDANT-APPELLANT PRO SE. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
OSWALD MCPHERSON, JR., DEFENDANT-APPELLANT PRO SE.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, BANNISTER, AND MONTOUR, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ), two counts of criminal possession of a controlled substance in the third degree (§ 220.16 [1]), and two counts of driving while intoxicated (DWI) as a misdemeanor ( Vehicle and Traffic Law §§ 1192 [2], [3] ; 1193 [1] [b] [i]). The conviction arises out of a traffic stop of a vehicle driven by defendant. We affirm.
Defendant contends in his main brief that the traffic stop was unlawful and, therefore, Supreme Court erred in refusing to suppress evidence obtained as a result thereof. We reject that contention. The record establishes that the police officer who effectuated the traffic stop was entitled to stop defendant's vehicle after he observed defendant violate a provision of the Vehicle and Traffic Law (see People v. Ricks , 145 A.D.3d 1610, 1610-1611, 45 N.Y.S.3d 738 [4th Dept. 2016], lv denied 29 N.Y.3d 1000, 57 N.Y.S.3d 722, 80 N.E.3d 415 [2017] ; see also Vehicle and Traffic Law § 1229-c [3] ; see generally People v. Robinson , 97 N.Y.2d 341, 349-350, 741 N.Y.S.2d 147, 767 N.E.2d 638 [2001] ; People v. Addison , 199 A.D.3d 1321, 1321-1322, 157 N.Y.S.3d 214 [4th Dept. 2021] ). Here, affording great deference to the court's resolution of credibility issues at the suppression hearing (see generally People v. Prochilo , 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ), as we must, we conclude that the police officer's testimony at the hearing established that he had probable cause to believe that defendant violated a provision of the Vehicle and Traffic Law when, at around 3:30 a.m. on a relatively low traffic roadway, he observed that defendant, who drove past the officer at a speed of approximately 20 miles per hour, was not wearing a seatbelt while operating the motor vehicle (see People v. Taylor , 57 A.D.3d 1504, 1504-1505, 871 N.Y.S.2d 791 [4th Dept. 2008], lv denied 12 N.Y.3d 788, 879 N.Y.S.2d 65, 906 N.E.2d 1099 [2009] ; see also People v. Herrera , 179 A.D.3d 836, 837, 118 N.Y.S.3d 50 [2d Dept. 2020], lv denied 35 N.Y.3d 942, 124 N.Y.S.3d 300, 147 N.E.3d 570 [2020] ).
Defendant further contends in his main and pro se supplemental briefs that the police conducted an illegal inventory search of the vehicle upon defendant's arrest, and therefore the court should have suppressed the evidence obtained as a result thereof. We reject that contention as well. "Following a lawful arrest of the driver of an automobile that must then be impounded, the police may conduct an inventory search of the vehicle" ( People v. Johnson , 1 N.Y.3d 252, 255, 771 N.Y.S.2d 64, 803 N.E.2d 385 [2003] ; see People v. Padilla , 21 N.Y.3d 268, 272, 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] ; People v. Nichols , 175 A.D.3d 1117, 1119, 106 N.Y.S.3d 532 [4th Dept. 2019], lv denied 34 N.Y.3d 1018, 114 N.Y.S.3d 769, 138 N.E.3d 498 [2019] ). "While incriminating evidence may be a consequence of an inventory search, it should not be its purpose" ( Johnson , 1 N.Y.3d at 256, 771 N.Y.S.2d 64, 803 N.E.2d 385 ). Here, the suppression hearing testimony established that "the police followed the procedure set forth in the applicable order of the Rochester Police Department in conducting the inventory search" ( People v. Nesmith , 124 A.D.3d 1325, 1326, 998 N.Y.S.2d 553 [4th Dept. 2015], lv denied 26 N.Y.3d 1042, 22 N.Y.S.3d 171, 43 N.E.3d 381 [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] ). Contrary to defendant's contention, the search of the vehicle did not exceed the permissible scope of an inventory search under the applicable general order. The applicable order permitted an inventory search of "[a]ny ... area large enough to conceal any dangerous instrument or items of value" (Rochester Police Department General Order 511 § III [former (E) (1) (d)]), and the location where the police ultimately found the evidence in question—i.e., a space within the front passenger's seat located behind a loose piece of fabric—was plainly large enough to conceal a dangerous instrument.
Defendant failed to preserve for our review his contention in his main brief "concerning the court's procedure for determining his Batson objection" ( People v. Schumaker , 136 A.D.3d 1369, 1371, 25 N.Y.S.3d 487 [4th Dept. 2016], lv denied 27 N.Y.3d 1075, 38 N.Y.S.3d 845, 60 N.E.3d 1211 [2016], reconsideration denied 28 N.Y.3d 974, 43 N.Y.S.3d 261, 66 N.E.3d 7 [2016] ; see People v. Massey , 173 A.D.3d 1801, 1802, 105 N.Y.S.3d 637 [4th Dept. 2019] ; People v. Scott , 81 A.D.3d 1470, 1471, 916 N.Y.S.2d 875 [4th Dept. 2011], lv denied 17 N.Y.3d 801, 929 N.Y.S.2d 109, 952 N.E.2d 1104 [2011] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
Defendant's contention in his main brief that the evidence is legally insufficient to support the conviction is preserved only with respect to the weapon and DWI counts (see generally People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ), and we reject the contention to that extent (see generally People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). Further, viewing the evidence in light of the elements of the crimes as charged to the jury (see id. ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Although a different verdict would not have been unreasonable, we cannot conclude that the jury "failed to give the evidence the weight it should be accorded" ( id. ). To the extent there is conflicting testimony, we conclude that it merely "presented an issue of credibility for the jury to resolve" ( People v. Boyd , 153 A.D.3d 1608, 1609, 61 N.Y.S.3d 431 [4th Dept. 2017], lv denied 30 N.Y.3d 1103, 77 N.Y.S.3d 2, 101 N.E.3d 388 [2018] [internal quotation marks omitted]; see People v. Urrutia , 181 A.D.3d 1338, 1339, 121 N.Y.S.3d 767 [4th Dept. 2020], lv denied 36 N.Y.3d 1054, 140 N.Y.S.3d 872, 164 N.E.3d 959 [2021] ).
Defendant further contends in his main brief that he was denied his right to a fair trial by the prosecutor's failure to disclose certain Brady material, i.e., information that one of the testifying officers had been punished for falsifying a police document and perjuring himself. Even assuming, arguendo, that a Brady violation did occur, we conclude that there was no violation of defendant's right to a fair trial because he was "given a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People's witnesses or as evidence during his case" ( People v. Cortijo , 70 N.Y.2d 868, 870, 523 N.Y.S.2d 463, 517 N.E.2d 1349 [1987] ; see People v. Gazzillo , 177 A.D.3d 1406, 1407, 110 N.Y.S.3d 602 [4th Dept. 2019] ; People v. McMillian , 158 A.D.3d 1059, 1060, 71 N.Y.S.3d 262 [4th Dept. 2018], lv denied 31 N.Y.3d 1119, 81 N.Y.S.3d 379, 106 N.E.3d 762 [2018]).
Defendant failed to preserve for our review his contention in his main brief that, in determining the sentence to be imposed, the court penalized him for exercising his right to a jury trial, inasmuch as defendant did not raise that contention at sentencing (see People v. Good , 199 A.D.3d 1461, 1463, 154 N.Y.S.3d 612 [4th Dept. 2021], lv denied 37 N.Y.3d 1161, 160 N.Y.S.3d 696, 181 N.E.3d 1124 [2022] ; 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] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ). The sentence is not unduly harsh or severe.
Finally, we have considered defendant's remaining contention in his main brief and conclude that it does not warrant reversal or modification of the judgment.