Opinion
2013-03-27
The PEOPLE, etc., respondent, v. Maurice TAYLOR, appellant.
Christopher J. Cassar, P.C., Huntington, N.Y., for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for respondent.
Christopher J. Cassar, P.C., Huntington, N.Y., for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for respondent.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hudson, J.), rendered September 9, 2010, convicting him of criminal possession of a controlled substance in the second degree, assault in the second degree, and unsafe backing in violation of Vehicle and Traffic Law § 1211(a), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Efman, J.), of those branches of the defendant'somnibus motion which were to suppress his statements to law enforcement officials and physical evidence.
ORDERED that the judgment is modified, on the law, by vacating the conviction of unsafe backing under count five of the indictment, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The hearing court properly determined that two detectives possessed probable cause to stop the defendant's car based upon their observations of him driving without wearing a seatbelt ( see People v. Wright, 98 N.Y.2d 657, 658–659, 746 N.Y.S.2d 273, 773 N.E.2d 1011;People v. Robinson, 97 N.Y.2d 341, 350, 741 N.Y.S.2d 147, 767 N.E.2d 638;People v. Graham, 54 A.D.3d 1056, 865 N.Y.S.2d 259;People v. Guzman, 153 A.D.2d 320, 551 N.Y.S.2d 709;see also People v. Pealer, 20 N.Y.3d 447, ––– N.Y.S.2d ––––, ––– N.E.2d –––– [Smith, J., concurring] [2013] ). In addition, the court properly denied that branch of the defendant's omnibus motion which was to suppress statements he made to the detectives upon being directed to remove his hands from his pockets, because he was not thereby subject to interrogation or its functional equivalent ( see People v. Samuels, 50 N.Y.2d 1035, 431 N.Y.S.2d 694, 409 N.E.2d 1368,cert. denied449 U.S. 984, 101 S.Ct. 402, 66 L.Ed.2d 247;People v. Rush, 31 A.D.3d 1115, 817 N.Y.S.2d 801;People v. Winchester, 14 A.D.3d 939, 790 N.Y.S.2d 238;People v. Smith, 280 A.D.2d 340, 721 N.Y.S.2d 311;People v. Gil, 211 A.D.2d 99, 626 N.Y.S.2d 103). The hearing court also properly denied that branch of the defendant's omnibus motion which was to suppress a sock containing cocaine and a small digital scale, because they were abandoned by the defendant. The evidence established that a struggle ensued between the detectives and the defendant when the detectives tried to arrest him. During the course of the struggle, the defendant abandoned the contraband by reaching into his pocket and throwing the sock onto a nearby lawn ( see People v. Howard, 50 N.Y.2d 583, 592–593, 430 N.Y.S.2d 578, 408 N.E.2d 908,cert. denied449 U.S. 1023, 101 S.Ct. 590, 66 L.Ed.2d 484;People v. Pittman, 14 N.Y.2d 885, 252 N.Y.S.2d 89, 200 N.E.2d 774;People v. Lopez, 22 A.D.2d 813, 254 N.Y.S.2d 806).
The defendant's contention that his conviction of unsafe backing (Vehicle and Traffic Law § 1211[a] ) was not supported by legally sufficient evidence is preserved for appellate review ( seeCPL 470.05[2] ), and we agree that the evidence was legally insufficient to support the conviction. Vehicle and Traffic Law § 1211(a) provides that a driver shall not back up unless he or she can do so safely and without interfering with other traffic. Here, the evidence was legally insufficient to support the unsafe backing conviction because neither of the two detectives who testified on the People's case testified that the defendant interfered with traffic in backing up ( see generally Bukharetsky v. Court St. Off. Supplies, Inc., 82 A.D.3d 812, 918 N.Y.S.2d 367;Dowd v. New York City Tr. Auth., 78 A.D.3d 884, 911 N.Y.S.2d 460;Garcia v. Verizon New York, Inc., 10 A.D.3d 339, 781 N.Y.S.2d 93). One detective admitted on cross-examination that there were no cars behind the defendant's car and that the defendant's car did not disturb or come into contact with any other vehicle upon backing up. The other detective admitted on cross-examination that although the defendant backed up by moving in the wrong direction in the southbound lane, the detectives, who were traveling in the northbound lane, did not intend or try to pass the defendant's car. Accordingly, the conviction of unsafe backing and the sentence imposed thereon must be vacated, and count five of the indictment dismissed.
The trial court properly denied the defendant's request for a jury charge on criminal possession of a controlled substance in the seventh degree, which has no weight requirement ( seePenal Law § 220.03), as a lesser-included offense of criminal possession of a controlled substance in the second degree, which requires possession of a controlled substance with an aggregate weight of four ounces or more ( seePenal Law § 220.18[1] ). Since the parties stipulated that the substance recovered in this case was cocaine with an aggregate weight of 4.19 ounces, no reasonable view of the evidence supported a charge of criminal possession of a controlled substance in the seventh degree ( seeCPL 300.50[1], [2] ).
The defendant's contention that the trial court failed to give a meaningful response to the jury's request to examine certain evidence is unpreserved for appellate review ( see People v. Starling, 85 N.Y.2d 509, 516, 626 N.Y.S.2d 729, 650 N.E.2d 387;People v. Smikle, 82 A.D.3d 1697, 919 N.Y.S.2d 672;People v. Peller, 8 A.D.3d 1123, 778 N.Y.S.2d 627;see also CPL 310.30) and, in any event, without merit.
The trial court providently exercised its discretion in giving the jury an Allen charge ( see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528;Matter of Plummer v. Rothwax, 63 N.Y.2d 243, 251, 481 N.Y.S.2d 657, 471 N.E.2d 429;People v. Wincelowicz, 258 A.D.2d 602, 685 N.Y.S.2d 741).
The sentence imposed was not excessive ( see People v. Delgado, 80 N.Y.2d 780, 587 N.Y.S.2d 271, 599 N.E.2d 675;People v. Thompson, 60 N.Y.2d 513, 519, 470 N.Y.S.2d 551, 458 N.E.2d 1228;People v. Suitte, 90 A.D.2d 80, 85–86, 455 N.Y.S.2d 675).
The defendant's remaining contentions are without merit or need not be reached in light of our determination.