Opinion
June 8, 2001.
(Appeal from Judgment of Cattaraugus County Court, Himelein, J. — Criminal Possession Controlled Substance, 3rd Degree.)
PRESENT: PIGOTT, JR., P.J., PINE, WISNER, KEHOE AND BURNS, JJ.
Judgment unanimously affirmed.
Memorandum:
Defendant was convicted following a jury trial of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [possession of a narcotic drug with intent to sell]) and criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06). County Court properly denied the motion of defendant to suppress evidence obtained as the result of the traffic stop of an automobile in which he was a passenger. The court properly rejected defendant's contention that the stop was pretextual ( see, People v. Perruccio, 267 A.D.2d 1082, lv denied 94 N.Y.2d 905; People v. McGriff, 219 A.D.2d 829, 830). The police were justified in stopping the vehicle for traffic offenses that occurred in their presence ( see, People v. Ellis, 62 N.Y.2d 393, 396; People v. Perruccio, supra, at 1082-1083) or were reported to them by fellow officers ( cf., People v. Landy, 59 N.Y.2d 369, 375). Once the vehicle was lawfully stopped, the police were entitled to order defendant, a passenger therein, to step out of the vehicle ( see, People v. Robinson, 74 N.Y.2d 773, 775, cert denied 493 U.S. 966; People v. Guzman, 153 A.D.2d 320, 322, appeal dismissed 76 N.Y.2d 824, cert denied 500 U.S. 941). During the stop, one of the officers observed the contraband in plain view in the back seat of the vehicle and lawfully entered the vehicle to seize it ( see, People v. Beriguette, 84 N.Y.2d 978, 980, rearg denied 85 N.Y.2d 924; People v. Whitfield, 255 A.D.2d 924, lv denied 93 N.Y.2d 981). Moreover, the officer's use of a flashlight was not an unreasonable intrusion and did not convert a proper observation into an impermissible search ( see, People v. Cruz, 34 N.Y.2d 362, 370, opn amended 35 N.Y.2d 708; People v. Warmuth, 187 A.D.2d 473, 474, lv denied 81 N.Y.2d 894; People v. Perez, 135 A.D.2d 582, 583, lv denied 70 N.Y.2d 1009).
Defendant failed to preserve for our review his contention that the conviction is not supported by legally sufficient evidence ( see, People v. Gray, 86 N.Y.2d 10, 19; People v. Richards, 275 A.D.2d 886, 887, lv denied 96 N.Y.2d 738). In any event, the evidence is legally sufficient to establish that defendant possessed the cocaine found in the automobile in which he was a passenger and had the requisite intent to sell it ( see, People v. Gadsden, 192 A.D.2d 1103, lv denied 82 N.Y.2d 718; see also, People v. Brooks, 234 A.D.2d 149, lv denied 89 N.Y.2d 1009). In addition, the verdict is not against the weight of the evidence ( see generally, People v. Bleakley, 69 N.Y.2d 490, 495). There is no merit to the contention that defendant was denied effective assistance of counsel ( see, People v. Satterfield, 66 N.Y.2d 796, 798-799). Defendant also contends that he was denied a fair trial based on improper comments by the prosecutor during summation. Defendant failed to object to the comment concerning his father's failure to testify. Defendant therefore has failed to preserve his contention concerning that comment for our review ( see, CPL 470.05; People v. Brinson, 265 A.D.2d 879, 880, lv denied 94 N.Y.2d 860), and we decline to exercise our power to review it as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]). With respect to the prosecutor's reference to defendant's prior conviction as a "rape" conviction, the court sustained defendant's objection thereto and gave prompt curative instructions, thereby alleviating any prejudice ( see, People v. Marzug, 280 A.D.2d 974; People v. Fonder, 211 A.D.2d 445, 446, lv denied 85 N.Y.2d 938). Defendant was properly sentenced as a predicate felon, and the sentence is neither unduly harsh nor severe.