Opinion
2012-03-16
The PEOPLE of the State of New York, Respondent, v. Kenny MILLS, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, LINDLEY, AND MARTOCHE, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, following a nonjury trial, of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ) and related offenses. County Court properly denied defendant's motion seeking suppression of physical evidence seized by police officers from his person and his vehicle. Contrary to defendant's contention, the approach of the vehicle by the police officer was “justified by an ‘articulable basis,’ meaning ‘an objective, credible reason not necessarily indicative of criminality’ ” ( People v. Grady, 272 A.D.2d 952, 708 N.Y.S.2d 765, lv. denied 95 N.Y.2d 905, 716 N.Y.S.2d 646, 739 N.E.2d 1151, quoting People v. Ocasio, 85 N.Y.2d 982, 985, 629 N.Y.S.2d 161, 652 N.E.2d 907). The officer observed the vehicle at 2:30 a.m. parked with the engine running in an area known for drug activity and, after checking the records on the license plate, the officer learned that the vehicle was registered to a parolee. He thus had articulable bases for approaching the vehicle and requesting information ( see People v. Gandy, 85 A.D.3d 1595, 924 N.Y.S.2d 899, lv. denied 17 N.Y.3d 859, 932 N.Y.S.2d 24, 956 N.E.2d 805; Grady, 272 A.D.2d 952, 708 N.Y.S.2d 765). The officer acquired the requisite probable cause to search defendant and the vehicle when he looked into the vehicle and observed what appeared to be baggies of marihuana in plain view ( see Gandy, 85 A.D.3d at 1596, 924 N.Y.S.2d 899; Grady, 272 A.D.2d 952, 708 N.Y.S.2d 765). Contrary to defendant's further contention, minor discrepancies in the suppression hearing testimony of that officer and the backup officer who arrived at the scene do not warrant disturbing the court's determination ( see People v. Weems, 61 A.D.3d 472, 879 N.Y.S.2d 68, lv. denied 13 N.Y.3d 750, 886 N.Y.S.2d 104, 914 N.E.2d 1022).
By failing to renew his motion for a trial order of dismissal after presenting the testimony of a witness, defendant failed to preserve for our review his contention that the evidence is legally insufficient to establish his intent to sell the marihuana ( see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329). In any event, that contention lacks merit ( see People v. James, 90 A.D.3d 1249, 934 N.Y.S.2d 619; People v. Brown, 52 A.D.3d 1175, 1177, 859 N.Y.S.2d 839, lv. denied 11 N.Y.3d 923, 874 N.Y.S.2d 8, 902 N.E.2d 442). Further, in view of our determination that the evidence is legally sufficient to support the conviction, defendant has failed to establish that a renewed motion for a trial order of dismissal “ ‘would be meritorious upon appellate review,’ ” and thus we reject defendant's contention that he was denied effective assistance of counsel based upon defense counsel's failure to renew the motion ( People v. Carrasquillo, 71 A.D.3d 1591, 1591, 897 N.Y.S.2d 581, lv. denied 15 N.Y.3d 803, 908 N.Y.S.2d 162, 934 N.E.2d 896; see People v. Donaldson, 89 A.D.3d 1472, 1473, 932 N.Y.S.2d 299). Finally, viewing the evidence in light of the elements of the crimes in this nonjury trial ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), 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).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.