        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

561
KA 13-01465
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

HAROLD HOWARD, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered January 30, 2013. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a weapon in
the second degree and criminal possession of a controlled substance in
the fourth degree.

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

     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]) and criminal possession of a
controlled substance in the fourth degree (§ 220.09 [1]). We reject
defendant’s contention that, because the traffic stop of his motor
vehicle was, as defendant characterizes it, “pre-ordained,” County
Court erred in refusing to suppress the evidence obtained by the
police following the stop. It is well settled that, “where a police
officer has probable cause to believe that the driver of an automobile
has committed a traffic violation, a stop does not violate [the state
or federal constitutions, and] . . . neither the primary motivation of
the officer nor a determination of what a reasonable traffic officer
would have done under the circumstances is relevant” (People v
Robinson, 97 NY2d 341, 349; see Whren v United States, 517 US 806,
812-813). Moreover, the credibility determinations of the suppression
court “are entitled to great deference on appeal and will not be
disturbed unless clearly unsupported by the record” (People v Spann,
82 AD3d 1013, 1014 [internal quotation marks omitted]). Here, the
testimony of the police officer that he observed the passenger in
defendant’s vehicle without a seat belt as the vehicles passed each
other, and smelled the odor of burnt marihuana when he approached
defendant’s passenger after the traffic stop, is not, contrary to
defendant’s contention, incredible as a matter of law (see People v
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                                                         KA 13-01465

Villanueva, 137 AD2d 852, 853, lv denied 71 NY2d 1034). Nor did any
alleged inconsistencies in the officer’s testimony render it
“manifestly untrue, physically impossible, contrary to experience, or
self-contradictory” (People v James, 19 AD3d 617, 618, lv denied 5
NY3d 829), or “demonstrate that it was a fabrication patently tailored
to meet constitutional objections” (People v Granger, 122 AD3d 940,
941). Additionally, having justifiably stopped the vehicle for a
traffic violation and having detected the odor of marihuana from
inside it, the police had reasonable suspicion that the vehicle
contained drugs, and the subsequent canine sniff was proper (see
People v Ponzo, 111 AD3d 1347, 1348).

      We reject defendant’s further contention that the court and/or
the prosecutor improperly informed the jury of the pretrial
suppression ruling. We conclude that the court properly instructed
the jury that it was not to consider the lawfulness of the stop of
defendant’s vehicle, and that instruction was appropriately balanced
by instructions relating to credibility and the testimony of police
officers (see People v Murphy, 284 AD2d 120, 120, lv denied 97 NY2d
685).

     Defendant contends that his Sixth Amendment right of
confrontation was violated by the court’s pretrial ruling that the
entirety of the passenger’s statement made to the police during the
traffic stop would be admissible if defendant “opened the door” by
offering a part thereof (see generally People v Rogers, 103 AD3d 1150,
1153, lv denied 21 NY3d 946). That contention is not preserved for
our review inasmuch as defendant failed to object to the admission of
the entire statement on that specific ground (see People v Rivera, 33
AD3d 450, 450-451, lv denied 7 NY3d 928), and 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 contention, we conclude that the court
properly exercised its discretion in conducting an in camera inquiry
and in sua sponte excusing a venireperson who expressed fear of
retribution during jury selection (see People v Wilson, 88 NY2d 363,
378-379; People v Stone, 239 AD2d 872, 873, lv denied 90 NY2d 943),
and we conclude that defendant was not deprived of his right to
counsel or to the selection of an impartial jury thereby (see Wilson,
88 NY2d at 378-379).

     We reject defendant’s further contention that the court erred in
permitting the prosecutor to elicit hearsay from a police witness.
The testimony of the police officer that he told his partner in the
patrol vehicle that he had observed a seat belt violation in
defendant’s vehicle was not offered for the truth of the matter but,
rather was offered for the effect on the listener, i.e., to explain
the conduct of the partner, as the operator of the police vehicle, in
stopping defendant’s vehicle (see People v Lester, 83 AD3d 1578, 1579,
lv denied 17 NY3d 818). We therefore further conclude, contrary to
defendant’s contention, that his counsel was not ineffective in
failing to object to that testimony (see generally People v Loomis,
                                 -3-                           561
                                                         KA 13-01465

126 AD3d 1394, 1394-1395).

     Defendant further contends that the prosecutor improperly
bolstered the credibility of a police officer by asking the officer on
redirect examination if he would be jeopardizing his career by
“mak[ing] this stuff up” over “one arrest,” and by making comments of
a similar nature during summation. Although that tactic is generally
impermissible (see People v Webb, 68 AD2d 331, 333; see also People v
Bonaparte, 98 AD2d 778, 778), we conclude that, under the
circumstances, it was fair response, respectively, to defense
counsel’s cross-examination of that witness (see People v Celdo, 291
AD2d 357, 358, lv denied 98 NY2d 673; People v Greenhagen, 78 AD2d
964, 965, lv denied 52 NY2d 833), and defense counsel’s summation (see
People v Balnavis, 175 AD2d 134, 134, lv denied 79 NY2d 824; People v
Hernandez, 128 AD2d 637, 637, lv denied 70 NY2d 648).

     Although we agree with defendant that it was improper for the
prosecutor to comment upon and emphasize the hollow-point nature of
the bullets in the recovered gun, that impropriety was not so
egregious as to deny defendant a fair trial (see generally People v
Diaz, 52 AD3d 1230, 1231, lv denied 11 NY3d 831).

     Finally, we have reviewed the remaining instances of alleged
ineffective assistance of counsel raised by defendant and conclude
that he received meaningful representation (see generally People v
Baldi, 54 NY2d 137, 147).




Entered:   June 12, 2015                       Frances E. Cafarell
                                               Clerk of the Court
