THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. FAJAH BENTLEY DEFENDANT APPELLANT (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by amending the orders of protection and as modified the judgment is affirmed, and the matter is remitted to Livingston County Court for further proceedings in accordance with the following memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]), criminal possession of a weapon in the third degree (§ 265.02 [3]), and criminal possession of a controlled substance in the seventh degree (§ 220.03).

In his main brief, defendant contends that County Court erred in refusing to suppress tangible evidence inasmuch as that evidence was the fruit of an unlawful police stop of defendant's vehicle. We reject that contention. As relevant here, a vehicle stop is permissible when based on probable cause that the driver has committed a traffic violation (see People v Hinshaw, 35 NY3d 427, 430 [2020]; People v Trine, 188 AD3d 1624, 1625 [4th Dept 2020], lv denied 36 NY3d 1060 [2021]). Here, we conclude that the evidence at the suppression hearing established that the police lawfully stopped the vehicle in which defendant was a passenger, because they had probable cause to believe the vehicle to be in violation of a provision of the Vehicle and Traffic Law—requiring that the vehicle have a registration sticker affixed to the front windshield (see Vehicle and Traffic Law § 403 [1]; see generally People v Bethea, 191 AD3d 1487, 1487 [4th Dept 2021], lv denied 36 NY3d 1118 [2021]; Trine, 188 AD3d at 1625). In light of our conclusion that the police lawfully stopped the vehicle on the basis of probable cause under the Vehicle and Traffic Law, we need not consider defendant's alternative argument that the police did not lawfully stop the vehicle because they lacked reasonable suspicion that defendant or the driver had committed, was committing, or was about to commit a crime. Moreover, we do not address the legality of any other aspect of the police encounter that resulted in the recovery of inculpatory evidence inasmuch as defendant does not challenge any aspect of that encounter aside from the initial vehicle stop.

Defendant's contention in his main brief that the indictment should be dismissed on statutory speedy trial grounds, because the People's certificate of compliance was invalid and, therefore, their statement of readiness was illusory, is not preserved for our review “inasmuch as [defendant] did not move ․ for dismissal on that ground” (People v Elmore, 211 AD3d 1536, 1538 [4th Dept 2022], lv denied 42 NY3d 938 [2024]; see CPL 210.20 [1] [g]; 210.45 [1]; People v Little, 229 AD3d 1156, 1157 [4th Dept 2024], lv denied 42 NY3d 971 [2024]). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

Contrary to defendant's further contention in his main brief, we conclude that the court did not abuse its discretion in fashioning a Sandoval compromise (see People v Campbell, 243 AD3d 1221, 1222 [4th Dept 2025], lv denied 44 NY3d 1064 [2026]; People v Cotton, 184 AD3d 1145, 1146-1147 [4th Dept 2020], lv denied 35 NY3d 1112 [2020]; see generally People v Sandoval, 34 NY2d 371, 374-375 [1974]). Indeed, we conclude that the court's ruling reflects “an appropriate balance between the probative value of the defendant's prior crimes on the issue of his credibility and the risk of possible prejudice” (People v Farley, 199 AD3d 1463, 1464 [4th Dept 2021], lv denied 37 NY3d 1145 [2021] [internal quotation marks omitted]; see People v Vanwuyckhuyse, 224 AD3d 1315, 1316-1317 [4th Dept 2024], lv denied 41 NY3d 967 [2024]; People v Micolo, 171 AD3d 1484, 1485 [4th Dept 2019], lv denied 35 NY3d 1096 [2020]). To the extent that defendant challenges the court's Sandoval ruling on the basis of its timing and due to its misstatement of one of defendant's prior convictions, those contentions are unpreserved for our review, inasmuch as defendant did not object to the court's Sandoval ruling on those specific grounds (see CPL 470.05 [2]; see generally People v Fuller, 174 AD3d 1335, 1336 [4th Dept 2019], lv denied 34 NY3d 951 [2019]; People v Snyder, 103 AD3d 1143, 1144 [4th Dept 2013]).

Defendant contends in his main brief that the court erred in not discharging a prospective juror for cause on the basis that the prospective juror failed to provide an unequivocal assurance of his impartiality with respect to defendant's right not to testify at trial. Defendant failed to preserve that contention for our review inasmuch as he “failed to raise before [the court] the specific claim he now raises on appeal”—indeed, defendant failed to challenge the prospective juror for cause before the trial court (People v Simmons, 119 AD3d 1343, 1343 [4th Dept 2014], lv denied 24 NY3d 964 [2014], reconsideration denied 24 NY3d 1088 [2014] [internal quotation marks omitted]; see People v Boykins, 134 AD3d 1542, 1542 [4th Dept 2015], lv denied 27 NY3d 1066 [2016]; People v Tieman, 132 AD3d 703, 704 [2d Dept 2015], lv denied 26 NY3d 1093 [2015]). In any event, “[e]ven assuming, arguendo, that the court erred in [refusing to excuse, sua sponte, the prospective juror] for cause, we conclude that the error does not require reversal because defendant ․ did not peremptorily challenge that prospective juror” (People v Arguinzoni, 48 AD3d 1239, 1241 [4th Dept 2008], lv denied 10 NY3d 859 [2008]; see CPL 270.20 [2]; Simmons, 119 AD3d at 1344).

Defendant's contention in his pro se supplemental brief that his conviction of the weapon possession counts is not supported by legally sufficient evidence is unpreserved for our review because his general motion for a trial order of dismissal was not “specifically directed at any alleged shortcoming in the evidence now raised on appeal” (People v Hunt, 172 AD3d 1888, 1889 [4th Dept 2019], lv denied 34 NY3d 933 [2019] [internal quotation marks omitted]; see generally People v Gray, 86 NY2d 10, 19 [1995]; People v VanGorden, 147 AD3d 1436, 1438 [4th Dept 2017], lv denied 29 NY3d 1037 [2017]). Contrary to defendant's further contention in his pro se supplemental brief, after viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict with respect to the weapon possession counts is not against the weight of the evidence with respect to the element of possession (see generally People v Bleakley, 69 NY2d 490, 495 [1987]; People v Nevins, 196 AD3d 1110, 1112 [4th Dept 2021], lv denied 37 NY3d 1061 [2021]). Although a different verdict would not have been unreasonable, it cannot be said that the jury “failed to give the evidence the weight it should be accorded” (Bleakley, 69 NY2d at 495; see People v Baldwin, 173 AD3d 1748, 1749 [4th Dept 2019], lv denied 34 NY3d 928 [2019]).

Defendant's contention in his pro se supplemental brief that he was deprived of a fair trial due to instances of prosecutorial misconduct during the prosecutor's opening statement and on summation is unpreserved for our review because defense counsel did not object to any of the purportedly improper comments (see People v Nesmith, 242 AD3d 1564, 1565 [4th Dept 2025], lv denied 44 NY3d 1067 [2026]; People v Dozier, 238 AD3d 1523, 1525 [4th Dept 2025], lv denied 44 NY3d 1027 [2025]; People v Reynolds, 211 AD3d 1493, 1494 [4th Dept 2022], lv denied 39 NY3d 1079 [2023]). We decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Contrary to defendant's further contention in his pro se supplemental brief, defense counsel's failure to object to the prosecutor's remarks did not deprive defendant of effective assistance of counsel (see generally People v Fick, 167 AD3d 1484, 1486 [4th Dept 2018], lv denied 33 NY3d 948 [2019]; People v Melendez, 11 AD3d 983, 984 [4th Dept 2004], lv denied 4 NY3d 888 [2005]).

Defendant further contends in his main brief that he was denied effective assistance of counsel based on defense counsel's alleged failure to investigate purportedly exculpatory material. That contention involves matters outside the record on appeal. We therefore conclude that, “because the claim of ineffective assistance of counsel cannot be resolved without reference to matter outside of the record, a CPL 440.10 proceeding is the appropriate forum for reviewing” defendant's ineffective assistance claim (People v Kellam, 237 AD3d 1518, 1520 [4th Dept 2025], lv denied 45 NY3d 937 [2026] [internal quotation marks omitted]; see People v Rhynes, 239 AD3d 1461, 1465 [4th Dept 2025], lv denied 44 NY3d 1029 [2025]; People v Rojas-Aponte, 224 AD3d 1264, 1265 [4th Dept 2024]).

Contrary to defendant's contention in his main brief, the sentence is not unduly harsh or severe. Finally, defendant challenges in his pro se supplemental brief the duration of the orders of protection entered in favor of two eyewitnesses. Although defendant failed to preserve his challenge to the orders of protection for our review (see CPL 470.05 [2]; People v Nieves, 2 NY3d 310, 315-317 [2004]), we exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]; People v Thomas, 244 AD3d 1822, 1822 [4th Dept 2025]; People v Richardson, 143 AD3d 1252, 1255 [4th Dept 2016], lv denied 28 NY3d 1150 [2017]). Here, the expiration date of the maximum term of defendant's determinate sentence of imprisonment is March 9, 2034. Pursuant to CPL 530.13 (4) (A) (ii), the duration of each order of protection may not exceed, as it does here, eight years from that date (see People v McBean, 192 AD3d 1706, 1707 [4th Dept 2021], lv denied 37 NY3d 958 [2021]). We therefore modify the judgment by amending the orders of protection, and we remit the matter to County Court to determine, and to specify in each order of protection, an expiration date that is in accordance with CPL 530.13 (4) (A) (ii) (see Thomas, 244 AD3d at 1822).

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court