THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. ANTHONY HERNDON DEFENDANT APPELLANT (2010)

MEMORANDUM AND ORDER

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

Memorandum:  On appeal 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] ) and criminal possession of a controlled substance in the seventh degree (§ 220.03), defendant contends that the prosecutor's peremptory challenge with respect to an African-American prospective juror constituted a Batson violation.   We reject that contention inasmuch as the prosecutor offered legitimate, nonpretextual reasons for exercising a peremptory challenge with respect to that prospective juror (see generally People v. Smocum, 99 N.Y.2d 418, 422-423).

We also reject the contention of defendant that County Court erred in refusing to suppress the drugs found in his vehicle and on his person.   The automobile exception to the warrant requirement authorizes the search of a vehicle when the police have probable cause to believe that the vehicle contains contraband, evidence of a crime or a weapon (People v. Daniels, 275 A.D.2d 1006, lv denied 95 N.Y.2d 962;  see People v. Belton, 55 N.Y.2d 49, 54-55, rearg. denied 56 N.Y.2d 646;  People v. Goss, 204 A.D.2d 984, 985, lv denied 84 N.Y.2d 826).   Here, the police had probable cause to search the vehicle in question based on the observations of an experienced police detective who observed what appeared to be a hand-to-hand drug transaction inside that vehicle in an area known for drug activity (see People v. Jones, 90 N.Y.2d 835, 837;  People v. Kirkland, 56 AD3d 1221, lv denied 12 NY3d 785).   Moreover, the court also determined that defendant voluntarily consented to the search of the vehicle and his person at the scene.   The court's determination “should not be disturbed unless clearly erroneous or unsupported by the [suppression] hearing evidence” (People v. Scaccia, 4 AD3d 808, 808, lv. denied 3 NY3d 647), and that is not the case here (see People v. Tejada, 217 A.D.2d 932, 933-934, lv denied 87 N.Y.2d 908).

Finally, we have considered defendant's remaining contentions and conclude that they are without merit.

Patricia L. Morgan

Clerk of the Court