PEOPLE v. MILLER (2008)

Appeal by the defendant from a judgment of the County Court, Putnam County (Miller, J.), rendered May 26, 2004, convicting him of criminal possession of a controlled substance in the first degree, criminal possession of a controlled substance in the fourth degree, and unlawful possession of marijuana, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and his statements to law enforcement officials.

ORDERED that the judgment is affirmed.

The defendant's contention that the evidence was not legally sufficient to prove his guilt beyond a reasonable doubt because the accomplice's testimony was uncorroborated is without merit.   The People met their burden of demonstrating sufficient independent evidence tending to connect the defendant to the crimes charged (see People v. Besser, 96 N.Y.2d 136, 143-144, 726 N.Y.S.2d 48, 749 N.E.2d 727).

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

 Contrary to the defendant's contention, there was no improper delegation of judicial authority, and the defendant's presence was not required, when the court clerk spoke to the jurors to tell them to commence deliberations in the morning, after they had been sequestered for the evening.   The court clerk did not deliver any instructions to the jurors concerning the mode or subject of their deliberations.   The court clerk did not attempt to convey any legal instructions to the jurors, or instruct them as to its duties or obligations (see People v. Bonaparte, 78 N.Y.2d 26, 571 N.Y.S.2d 421, 574 N.E.2d 1027;  People v. Vasquez, 2 A.D.3d 759, 770 N.Y.S.2d 116).

Contrary to the defendant's contention, the court's charge was sufficient to convey to the jury that the automobile presumption in Penal Law § 220.25(1) was permissive and not mandatory (see People v. Lowery, 232 A.D.2d 581, 648 N.Y.S.2d 985;  People v. Parks, 199 A.D.2d 426, 605 N.Y.S.2d 347).

 The defendant's contention that the hearing court erred in denying that branch of his omnibus motion which was to suppress evidence obtained as a result of a traffic stop is without merit.   The decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred (see People v. Robinson, 97 N.Y.2d 341, 348-349, 741 N.Y.S.2d 147, 767 N.E.2d 638;  People v. Sluszka, 15 A.D.3d 421, 790 N.Y.S.2d 55).   Here, the defendant was stopped based on a violation of Vehicle and Traffic Law § 1180(a), which states that no person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing.   The testimony of a State Trooper at the suppression hearing was that the defendant was traveling at an imprudent speed, given the hazardous weather conditions.   The hearing court credited that testimony.   The resolution of issues of credibility by a hearing court is entitled to great deference on appeal, and will not be disturbed unless it is clearly unsupported by the record (see People v. Dickerson, 45 A.D.3d 778, 844 N.Y.S.2d 898).   The record supports the court's determination that the trooper's testimony was credible.   Furthermore, the court did not err in denying the defendant's application to reopen the suppression hearing, as the defendant failed to show that additional pertinent facts had been discovered that would have affected the court's ultimate determination of the issue of probable cause (see CPL 710.40[4];  People v. John, 38 A.D.3d 568, 832 N.Y.S.2d 238).

The defendant's contention concerning comments made by the prosecutor during summation is unpreserved for appellate review, as he raised only a general objection to the challenged comments and failed to move for a mistrial on that ground (see People v. Brown, 48 A.D.3d 590, 849 N.Y.S.2d 901).   In any event, the prosecutor's comments either were responsive to defense counsel's argument, were fair comment on the evidence, or otherwise remained within the broad bounds of rhetorical comment permissible in closing argument (see People v. Holmes, 47 A.D.3d 946, 850 N.Y.S.2d 571).

The defendant's contention in his supplemental pro se brief that trial counsel was ineffective is without merit.   The evidence, the law, and the circumstances, viewed in totality and as of the time of the representation, reveal that trial counsel provided meaningful representation (see People v. Argueta, 46 A.D.3d 46, 844 N.Y.S.2d 63).

The defendant's contention in his supplemental pro se brief regarding the court's instructions to the jury is unpreserved for appellate review, and in any event, is without merit.

The defendant's remaining contentions in his supplemental pro se brief are without merit.