Opinion
2014-07-3
The PEOPLE of the State of New York, Respondent, v. Christopher H. ERON, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Caitlin M. Connelly of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Caitlin M. Connelly of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
PRESENT: SMITH, J.P., CENTRA, CARNI, WHALEN AND DeJOSEPH, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon a jury verdict of, inter alia, aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511[3][a][i] ), defendant initially contends that County Court erred in denying his motion to suppress his statements and other evidence seized as the result of the allegedly unlawful stop of his vehicle. Contrary to defendant's contention, the court properly denied that motion. 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), we conclude that the record supports the court's finding that the police officer lawfully stopped defendant's car for crossing the white fog line in violation of section 1128(a) ( see People v. Tandle, 71 A.D.3d 1176, 1177–1178, 898 N.Y.S.2d 597,lv. denied15 N.Y.3d 757, 906 N.Y.S.2d 830, 933 N.E.2d 229;People v. Wohlers, 138 A.D.2d 957, 957, 526 N.Y.S.2d 290;see generally Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89;People v. Robinson, 97 N.Y.2d 341, 348–349, 741 N.Y.S.2d 147, 767 N.E.2d 638).
Defendant failed to preserve for our review his contention that the verdict was inconsistent inasmuch as he failed to object to the alleged inconsistency before the jury was discharged ( see People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280). In any event, we conclude that defendant's contention is without merit ( see generally People v. Tucker, 55 N.Y.2d 1, 6–8, 447 N.Y.S.2d 132, 431 N.E.2d 617,rearg. denied55 N.Y.2d 1039, 449 N.Y.S.2d 1030, 434 N.E.2d 1081).
Defendant also failed to preserve for our review his challenge to the legal sufficiency of the evidence inasmuch as he failed to renew his motion for a trial order of dismissal after presenting evidence ( see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329,rearg. denied97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396). In any event, that challenge lacks merit ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Viewing the evidence in light of the elements of the crime and traffic infraction as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we further conclude that the verdict is not against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). “[R]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury” ( People v. Witherspoon, 66 A.D.3d 1456, 1457, 885 N.Y.S.2d 829,lv. denied13 N.Y.3d 942, 895 N.Y.S.2d 333, 922 N.E.2d 922 [internal quotation marks omitted] ) and, here, we see no reason here to disturb the jury's resolution of those issues.
Defendant failed to object when a prosecution witness was permitted to testify while wearing his National Guard uniform, and thus failed to preserve for our review his contention that he was thereby denied due process ( see generally People v. Smikle, 112 A.D.3d 1357, 1358, 978 N.Y.S.2d 508,lv. denied22 N.Y.3d 1141, 983 N.Y.S.2d 500, 6 N.E.3d 619;People v. Caldwell, 98 A.D.3d 1272, 1272, 951 N.Y.S.2d 293,lv. denied20 N.Y.3d 985, 958 N.Y.S.2d 700, 982 N.E.2d 620). In addition, defendant did not ask that the jury be instructed that the witness was not more credible merely because he was wearing a uniform, and thus he also failed to preserve for our review his contention that the court should have issued such an instruction ( see generally People v. Montero, 100 A.D.3d 1555, 1556, 954 N.Y.S.2d 397,lv. denied21 N.Y.3d 945, 968 N.Y.S.2d 7, 990 N.E.2d 141;People v. Perez, 89 A.D.3d 1393, 1394, 932 N.Y.S.2d 628,lv. denied18 N.Y.3d 961, 944 N.Y.S.2d 489, 967 N.E.2d 714). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ).
The sentence is not unduly harsh or severe. We have considered defendant's remaining contentions and conclude that they are without merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.