PEOPLE v. WASHINGTON (2008)

 Defendant appeals from a judgment convicting him, following a jury trial, of criminal possession of a controlled substance in the first degree (Penal Law § 220.21 [former (1) ] ).   Defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396) and, in any event, that challenge is without merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   We further conclude that the verdict is not against the weight of the evidence (see generally People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1;  Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The jury was entitled to reject the testimony of the codefendant that defendant was not involved in the crime and to find, based upon the automobile presumption set forth in Penal Law § 220.25(1), that defendant knowingly possessed the cocaine found in the vehicle in which he was a passenger (see People v. Kinchen, 278 A.D.2d 874, 717 N.Y.S.2d 435, lv. denied 96 N.Y.2d 760, 725 N.Y.S.2d 287, 748 N.E.2d 1083).   Contrary to defendant's further contention, the instructions given to the grand jury were proper (see generally People v. Wooten, 283 A.D.2d 931, 932, 725 N.Y.S.2d 767, lv. denied 96 N.Y.2d 943, 733 N.Y.S.2d 383, 759 N.E.2d 382).

 Although defendant has standing to challenge the search of the vehicle by virtue of the People's reliance on the statutory automobile presumption (see generally People v. Wesley, 73 N.Y.2d 351, 360-362, 540 N.Y.S.2d 757, 538 N.E.2d 76), we reject his contention that County Court erred in refusing to suppress the cocaine found in the vehicle.   The police officer had reasonable suspicion for the initial stop of the vehicle based upon information from an identified citizen informant that the driver of the vehicle was drinking alcohol and driving erratically (see People v. Kirkey, 17 A.D.3d 1149, 793 N.Y.S.2d 856, lv. denied 5 N.Y.3d 764, 801 N.Y.S.2d 259, 834 N.E.2d 1269;  People v. Hoffman, 283 A.D.2d 928, 928-929, 725 N.Y.S.2d 494, lv. denied 96 N.Y.2d 919, 732 N.Y.S.2d 636, 758 N.E.2d 662).   The record establishes that the codefendant consented to the search that yielded the cocaine, and there is no indication that his consent was coerced (see People v. Hinds, 184 A.D.2d 579, 581, 584 N.Y.S.2d 859, lv. denied 80 N.Y.2d 832, 587 N.Y.S.2d 917, 600 N.E.2d 644).   In any event, even assuming, arguendo, that the codefendant did not consent to the search of his vehicle, we conclude that, upon determining that he did not have a valid driver's license, the police were justified in impounding the vehicle following his arrest for aggravated unlicensed operation of a motor vehicle (see People v. Johnson, 1 N.Y.3d 252, 255, 771 N.Y.S.2d 64, 803 N.E.2d 385).   The police then properly conducted an inventory search “pursuant to ‘an established procedure clearly limiting the conduct of individual officers that assures that the searches are carried out consistently and reasonably’ ” (id. at 256, 771 N.Y.S.2d 64, 803 N.E.2d 385;  see People v. Owens, 39 A.D.3d 1260, 1261, 836 N.Y.S.2d 385, lv. denied 9 N.Y.3d 849, 840 N.Y.S.2d 775, 872 N.E.2d 888;  People v. Jackson, 16 A.D.3d 1022, 1023, 791 N.Y.S.2d 262, lv. denied 4 N.Y.3d 854, 797 N.Y.S.2d 428, 830 N.E.2d 327), and thus the court properly concluded that the cocaine was discovered during that valid inventory search.   We further conclude that defendant received meaningful representation (see generally People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

Contrary to the contention of defendant in his pro se supplemental brief, the court did not abuse its discretion in discharging an absent juror after “a reasonably thorough inquiry” into her availability established that she would not be available within two hours of the time at which the trial was scheduled to resume (CPL 270.35[2][a];  see People v. Jeanty, 94 N.Y.2d 507, 516-517, 706 N.Y.S.2d 683, 727 N.E.2d 1237, rearg. denied 95 N.Y.2d 849, 713 N.Y.S.2d 524, 735 N.E.2d 1289;  People v. Kimes, 37 A.D.3d 1, 24, 831 N.Y.S.2d 1, lv. denied 8 N.Y.3d 881, 832 N.Y.S.2d 494, 864 N.E.2d 624, 9 N.Y.3d 846, 840 N.Y.S.2d 772, 872 N.E.2d 885).   Defendant was not otherwise deprived of a fair trial based on the cumulative effect of alleged errors at trial.   The sentence is not unduly harsh or severe.

We have considered the remaining contentions of defendant in his pro se supplemental brief and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: