MILLS, KENNY, PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
256
KA 09-00594
PRESENT: SMITH, J.P., FAHEY, LINDLEY, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
KENNY MILLS, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Onondaga County Court (Anthony F.
Aloi, J.), rendered July 21, 2008. The judgment convicted defendant,
upon a nonjury 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 affirmed.
Memorandum: Defendant appeals from a judgment convicting him,
following a nonjury trial, of criminal possession of a controlled
substance in the third degree (Penal Law § 220.16 [1]) and related
offenses. County Court properly denied defendant’s motion seeking
suppression of physical evidence seized by police officers from his
person and his vehicle. Contrary to defendant’s contention, the
approach of the vehicle by the police officer was “justified by an
‘articulable basis,’ meaning ‘an objective, credible reason not
necessarily indicative of criminality’ ” (People v Grady, 272 AD2d
952, lv denied 95 NY2d 905, quoting People v Ocasio, 85 NY2d 982,
985). The officer observed the vehicle at 2:30 A.M. parked with the
engine running in an area known for drug activity and, after checking
the records on the license plate, the officer learned that the vehicle
was registered to a parolee. He thus had articulable bases for
approaching the vehicle and requesting information (see People v
Gandy, 85 AD3d 1595, lv denied 17 NY3d 859; Grady, 272 AD2d 952). The
officer acquired the requisite probable cause to search defendant and
the vehicle when he looked into the vehicle and observed what appeared
to be baggies of marihuana in plain view (see Gandy, 85 AD3d at 1596;
Grady, 272 AD2d 952). Contrary to defendant’s further contention,
minor discrepancies in the suppression hearing testimony of that
officer and the backup officer who arrived at the scene do not warrant
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KA 09-00594
disturbing the court’s determination (see People v Weems, 61 AD3d 472,
lv denied 13 NY3d 750).
By failing to renew his motion for a trial order of dismissal
after presenting the testimony of a witness, defendant failed to
preserve for our review his contention that the evidence is legally
insufficient to establish his intent to sell the marihuana (see People
v Hines, 97 NY2d 56, 61). In any event, that contention lacks merit
(see People v James, 90 AD3d 1249; People v Brown, 52 AD3d 1175, 1177,
lv denied 11 NY3d 923). Further, in view of our determination that
the evidence is legally sufficient to support the conviction,
defendant has failed to establish that a renewed motion for a trial
order of dismissal “ ‘would be meritorious upon appellate review,’ ”
and thus we reject defendant’s contention that he was denied effective
assistance of counsel based upon defense counsel’s failure to renew
the motion (People v Carrasquillo, 71 AD3d 1591, 1591, lv denied 15
NY3d 803; see People v Donaldson, 89 AD3d 1472, 1473). Finally,
viewing the evidence in light of the elements of the crimes in this
nonjury trial (see People v Danielson, 9 NY3d 342, 349), we conclude
that the verdict is not against the weight of the evidence (see
generally People v Bleakley, 69 NY2d 490, 495).
Entered: March 16, 2012 Frances E. Cafarell
Clerk of the Court