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

1053
KA 11-01743
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

PABLO ESTIVAREZ, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MARIA MALDONADO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered March 21, 2011. The judgment
convicted defendant, upon a jury verdict, of criminal possession of
marihuana in the third degree.

     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 marihuana in the third degree (Penal
Law § 221.20), defendant contends that Supreme Court erred in refusing
to suppress marihuana seized by the police from the vehicle in which
defendant was a passenger following a traffic stop. Defendant sought
suppression of the marihuana on the ground that it was the product of
an illegal search of a locked container within the trunk of the
vehicle, and he now contends for the first time on appeal that the
officer who stopped the vehicle gave testimony “ ‘patently tailored to
nullify constitutional objections’ ” with respect to the traffic stop
(People v Lebron, 184 AD2d 784, 784). That contention therefore is
not preserved for our review (see CPL 470.05 [2]; People v Buckman, 66
AD3d 1400, 1401, lv denied 13 NY3d 937), and is without merit in any
event. The hearing record supports the court’s determination that the
officer lawfully stopped the vehicle for having an inadequate muffler
in violation of Vehicle and Traffic Law § 375 (31) (see People v
Thomas, 210 AD2d 269, 269-270, lv denied 84 NY2d 1039).

     Viewing the evidence in light of the elements of the crime as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
reject defendant’s further contention that the verdict is against the
weight of the evidence (see People v Velez, 78 AD3d 1522, 1522; see
                                 -2-                            1053
                                                           KA 11-01743

generally People v Bleakley, 69 NY2d 490, 495).




Entered:   November 14, 2014                      Frances E. Cafarell
                                                  Clerk of the Court
