PEOPLE v. MORRIS (2007)

Defendant appeals from a judgment convicting him following a bench trial of criminal possession of stolen property in the fourth degree (Penal Law § 165.45[5] ), unauthorized use of a vehicle in the second degree (§ 165.06) and illegal possession of a vehicle identification number (§ 170.70 [3] ).   We reject the contention of defendant that he was denied effective assistance of counsel based upon defense counsel's failure to seek suppression of evidence obtained as the result of the allegedly illegal stop of the vehicle driven by the codefendant in which defendant was a passenger.   Defendant failed “to demonstrate the absence of strategic or other legitimate explanations for [defense] counsel's failure to [seek that relief]” (People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698).   Indeed, the record indicates that the codefendant voluntarily pulled the vehicle over and stopped without any compulsion by the police officer who was following the vehicle.   Thus, contrary to the contention of defendant, there was no stop of the vehicle in which he was a passenger and thus no basis to seek suppression of evidence subsequently obtained by the officer based on an allegedly illegal stop (cf. People v. Fabian, 178 A.D.2d 544, 545, 577 N.Y.S.2d 643, lv. denied 79 N.Y.2d 919, 582 N.Y.S.2d 79, 590 N.E.2d 1207).   Contrary to the further contention of defendant, the evidence is legally sufficient to establish that he “knowingly possessed stolen property ․, knowingly exercised control of a vehicle without the consent of the owner ․ and knowingly possessed a vehicle with a [vehicle identification number] plate not affixed by the manufacturer” (People v. Von Werne, 41 N.Y.2d 584, 589, 394 N.Y.S.2d 183, 362 N.E.2d 982;  see People v. Bullock, 287 A.D.2d 465, 731 N.Y.S.2d 77, lv. denied 97 N.Y.2d 654, 737 N.Y.S.2d 55, 762 N.E.2d 933;  People v. Jackson, 282 A.D.2d 830, 832-833, 725 N.Y.S.2d 406, lv. denied 96 N.Y.2d 902, 730 N.Y.S.2d 800, 756 N.E.2d 88).   The verdict 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 be and the same hereby is unanimously affirmed.

MEMORANDUM: