Opinion
Argued May 22, 2001.
July 2, 2001.
Appeal by the defendant from a judgment of the County Court, Orange County (Pano Z. Patsalos, J.), rendered November 12, 1998, convicting him of criminal possession of a controlled substance in the first degree, criminal possession of a controlled substance in the third degree, and unlawful possession of marihuana, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.
Eric Sachs, Bellmore, N.Y. (Solomon J. Schepps of counsel), for appellant.
Francis D. Phillips II, District Attorney, Goshen, N.Y. (David R. Huey of counsel), for respondent.
Before: DAVID S. RITTER, J.P., SONDRA MILLER, SANDRA J. FEUERSTEIN, ROBERT W. SCHMIDT, JJ.
ORDERED that the judgment is affirmed.
The defendant's contention that a police officer improperly used traffic violations as a pretext to search him was not raised before the hearing court and is, therefore, not preserved for appellate review (see, People v. Alcide, 252 A.D.2d 591). In any event, the officer lawfully stopped the vehicle driven by the defendant's companion based upon his observation of the traffic violations (see, People v. Ellis, 62 N.Y.2d 393; People v. Alcide, supra). Upon observing a bag by the defendant's feet containing a brown vegetative substance which he believed to be marihuana, the officer possessed the common-law right to inquire about the bag (see, Matter of Camille H., 215 A.D.2d 143; People v. Hines, 155 A.D.2d 722). The subsequent observations of the officer which led to the seizure of over one pound of crack cocaine from the defendant were proper (see, People v. Hill, 148 A.D.2d 546).
The defendant's contention that certain remarks made by the prosecutor during summation were inflammatory is unpreserved for appellate review, as he failed to object to the remarks or move for a mistrial (see, People v. Medina, 53 N.Y.2d 951). In any event, the prosecutor's remarks concerning credibility were made in response to the defense counsel's comments on credibility and the conflicts between the testimony of the prosecution's witnesses and the defendant's testimony. As such, the prosecutor's remarks were a fair response to the defense counsel's summation (see, People v. Thomas, 186 A.D.2d 602; People v. Persaud, 237 A.D.2d 538). Furthermore, they were harmless in light of the overwhelming evidence of the defendant's guilt (see, People v. Crimmins, 36 N.Y.2d 230).
The defendant's contention that he received ineffective assistance of counsel is without merit (see, People v. Baldi, 54 N.Y.2d 173).
The sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contentions are without merit.
RITTER, J.P., S. MILLER, FEUERSTEIN and SCHMIDT, JJ., concur.