PEOPLE v. WILBURN (2008)

 Defendant appeals from a judgment convicting him, after a jury trial, of criminal possession of a weapon in the third degree (Penal Law § 265.02 [former (4) ] ).   We reject the contention of defendant that County Court erred in refusing to suppress the physical evidence seized during an inventory search of his vehicle.   The People presented evidence at the suppression hearing establishing that the police lawfully stopped defendant for a Vehicle and Traffic Law violation and, upon determining that he was an unlicensed driver and that the passenger in the vehicle also was unable to drive it, the police properly impounded the vehicle.   Contrary to defendant's contention, the police were not required to explore alternatives to impoundment (see People v. Schwing, 13 A.D.3d 725, 725-726, 786 N.Y.S.2d 249;  People v. Walker, 267 A.D.2d 994, 701 N.Y.S.2d 555, lv. denied 94 N.Y.2d 953, 710 N.Y.S.2d 10, 731 N.E.2d 627, citing Colorado v. Bertine, 479 U.S. 367, 373-374, 107 S.Ct. 738, 93 L.Ed.2d 739).   The police officer who conducted the inventory search upon impounding the vehicle followed the written procedures mandated by the City of Rochester Police Department (see People v. Galak, 80 N.Y.2d 715, 594 N.Y.S.2d 689, 610 N.E.2d 362;  People v. Scott, 210 A.D.2d 920, 921, 621 N.Y.S.2d 260, lv. denied 85 N.Y.2d 942, 627 N.Y.S.2d 1004, 651 N.E.2d 929), and the search was reasonable (cf. Galak, 80 N.Y.2d at 718-721, 594 N.Y.S.2d 689, 610 N.E.2d 362).   Further, the inventory search was not rendered invalid by the officer's alleged failure to catalogue every item in the vehicle (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;  Walker, 267 A.D.2d at 995, 701 N.Y.S.2d 555).

 The court properly denied the motion of defendant to sever his trial from that of his codefendant.   Defendant's motion was untimely, and defendant failed to show good cause for bringing his motion 10 months after the indictment was filed (see CPL 255.20[3];  see generally People v. Bornholdt, 33 N.Y.2d 75, 87-88, 350 N.Y.S.2d 369, 305 N.E.2d 461, cert. denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 109).   In any event, “severance is compelled where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant's guilt,” and there was no such showing by defendant in this case (People v. Mahboubian, 74 N.Y.2d 174, 184, 544 N.Y.S.2d 769, 543 N.E.2d 34;  cf. People v. Cardwell, 78 N.Y.2d 996, 997-998, 575 N.Y.S.2d 267, 580 N.E.2d 753).

 Finally, the verdict, based on the applicability of the automobile presumption (see Penal Law § 265.15[3];  People v. Carter, 34 A.D.3d 1342, 1343, 825 N.Y.S.2d 612, lv. denied 8 N.Y.3d 844, 830 N.Y.S.2d 703, 862 N.E.2d 795), is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), and the sentence is not unduly harsh or severe.

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

MEMORANDUM: