SMITH, TIMOTHY, PEOPLE v ( 2015 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1393
    KA 12-02261
    PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, WHALEN, AND DEJOSEPH, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    TIMOTHY SMITH, DEFENDANT-APPELLANT.
    FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (EVAN HANNAY OF COUNSEL),
    FOR DEFENDANT-APPELLANT.
    TIMOTHY SMITH, DEFENDANT-APPELLANT PRO SE.
    WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
    OF COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Onondaga County Court (Joseph E.
    Fahey, J.), rendered November 15, 2012. The judgment convicted
    defendant, upon a jury verdict, of criminal possession of a controlled
    substance in the third degree, criminal possession of a controlled
    substance in the fifth degree and criminal possession of a controlled
    substance in the seventh degree.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously reversed on the law, a new trial is granted on the second
    and third counts of the indictment, and the fourth count of the
    indictment is dismissed.
    Memorandum: Defendant appeals from a judgment convicting him
    upon a jury verdict of criminal possession of a controlled substance
    in the third degree (Penal Law § 220.16 [1]), the fifth degree (§
    220.06 [5]), and the seventh degree (§ 220.03). The charges arose
    from the seizure of a baggie containing crack cocaine from a vehicle
    in which defendant was a passenger. Contrary to defendant’s
    contention, we conclude that County Court properly refused to suppress
    tangible property, including the crack cocaine, as the product of an
    allegedly illegal search. The evidence at the suppression hearing
    supports the court’s determination that the conduct of the police “was
    justified in its inception and at every subsequent stage of the
    encounter” (People v Nicodemus, 247 AD2d 833, 835, lv denied 92 NY2d
    858; see People v De Bour, 40 NY2d 210, 215). The police officer had
    an objective, credible reason to approach the parked vehicle and
    request information from its occupants (see People v Ocasio, 85 NY2d
    982, 985; People v Witt, 129 AD3d 1449, 1450, lv denied 26 NY3d 937).
    After the officer observed defendant and another passenger acting
    suspiciously, the officer was justified in opening the door and
    -2-                          1393
    KA 12-02261
    ordering the occupants out of the vehicle (see People v Carter, 60
    AD3d 1103, 1105, lv denied 12 NY3d 924). The officer then observed
    the baggie containing crack cocaine, which provided probable cause to
    seize the cocaine and arrest defendant (see People v Robinson, 38 AD3d
    572, 573).
    Viewing the evidence in light of the elements of the crimes as
    charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
    conclude that “the verdict, based on the applicability of the
    automobile presumption . . . , is not against the weight of the
    evidence” (People v Campbell, 109 AD3d 1142, 1142, lv denied 22 NY3d
    1039). We reject defendant’s contention that the court erred in
    denying his request for substitution of counsel, inasmuch as defendant
    did not explicitly request new counsel (see People v Singletary, 63
    AD3d 1654, 1654, lv denied 13 NY3d 839), nor did his general
    complaints concerning counsel constitute a showing of good cause for
    such substitution (see People v Watkins, 77 AD3d 1403, 1404, lv denied
    15 NY3d 956).
    We agree with defendant, however, that the judgment of conviction
    should be reversed and a new trial granted because the court erred in
    summarily denying, as untimely, his request to proceed pro se (see
    generally People v McIntyre, 36 NY2d 10, 14). “Although requests [to
    proceed pro se] on the eve of trial are discouraged, the Court of
    Appeals has found that a request may be considered timely when it is
    ‘interposed prior to the prosecution’s opening statement,’ as here”
    (People v Atkinson, 111 AD3d 1061, 1062, quoting McIntyre, 36 NY2d at
    18).
    Finally, as the People correctly concede, the count of criminal
    possession of a controlled substance in the seventh degree should be
    dismissed as a inclusory concurrent count of either of the remaining
    charges (see CPL 300.30 [4]; 300.40 [3] [b]; People v Lee, 39 NY2d
    388, 390-391).
    In view of our decision, we do not address the remaining
    contentions in defendant’s main and pro se supplemental briefs.
    Entered: December 31, 2015                      Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 12-02261

Filed Date: 12/31/2015

Precedential Status: Precedential

Modified Date: 10/7/2016