PEOPLE v. JONES

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Supreme Court, Appellate Division, Third Department, New York.

The PEOPLE of the State of New York, Respondent, v. Robert JONES, Appellant.

Decided: June 24, 2004

Before:  CARDONA, P.J., CREW III, MUGGLIN, ROSE and LAHTINEN, JJ. Jerald Rosenthal, Hudson, for appellant. Paul A. Clyne, District Attorney, Albany (Bradley A. Sherman of counsel), for respondent.

Appeals (1) from a judgment of the Supreme Court (Teresi, J.), rendered May 23, 2002 in Albany County, upon a verdict convicting defendant of the crime of criminal possession of a weapon in the third degree, and (2) by permission, from an order of said court, entered January 9, 2003 in Albany County, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

On October 9, 2001 in the City of Albany, police officer Brad Connors observed a truck turn onto Knox Street without using a turn signal.   As a consequence, Connors pulled the vehicle over and requested identification from the female driver.   When the driver was unable to provide identification and admitted that her driver's license was suspended, Connors began eliciting information from the two passengers in the vehicle, which included defendant.   Following a background check, which revealed the existence of an active arrest warrant for defendant, he was placed under arrest.   A search incident to that arrest disclosed a fully loaded banana clip, which was found to be compatible with a .22 caliber pistol subsequently found in the vehicle on the floorboard where defendant had been seated.   As a consequence, defendant was indicted and charged with criminal possession of a weapon in the third degree.   Following a jury trial, defendant was convicted as charged and sentenced to seven years' imprisonment.   Defendant thereafter moved to vacate his conviction, which motion was denied without a hearing.   Defendant now appeals from his conviction and the denial of his motion to vacate that conviction.

 Initially, defendant contends that because he was not the driver of the truck, the police had no authority to question him and, thus, his ultimate arrest was unlawful.   We note first that inasmuch as defendant did not challenge the legality of his arrest by way of a motion to suppress, the issue is not preserved for appellate review (see People v. Lancaster, 272 A.D.2d 719, 719-720, 708 N.Y.S.2d 182 [2000] ).   In any event, were we to consider defendant's contention, we would find it meritless.   Where, as here, a police officer makes a legitimate traffic stop, a request for identification of a passenger constitutes a minimal intrusion that is reasonable where the driver is unable to provide identification or a valid driver's license (cf. People v. Vazquez, 135 A.D.2d 896, 897-898, 522 N.Y.S.2d 294 [1987];  see People v. Tejada, 270 A.D.2d 655, 656, 704 N.Y.S.2d 365 [2000], lv. denied 95 N.Y.2d 805, 711 N.Y.S.2d 173, 733 N.E.2d 245 [2000] ).

Defendant next asserts numerous acts of alleged prosecutorial misconduct, which he claims prejudiced him to such extent as to deprive him of his right to a fair trial.   Again, we note that no objections were made regarding such alleged misconduct, thus not preserving the claims for appellate review (see People v. Marshall, 2 A.D.3d 1157, 1158, 768 N.Y.S.2d 703 [2003], lv. denied 2 N.Y.3d 743, 778 N.Y.S.2d 468, 810 N.E.2d 921 [2004] ).   In any event, were we to consider defendant's claims, we would find them to be without merit.   We have considered the remainder of defendant's arguments and find them equally unavailing.

ORDERED that the judgment and order are affirmed.

CREW III, J.

CARDONA, P.J., MUGGLIN, ROSE and LAHTINEN, JJ., concur.

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