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

1393
KA 12-02261
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TIMOTHY SMITH, DEFENDANT-APPELLANT.


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

TIMOTHY SMITH, DEFENDANT-APPELLANT PRO SE.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered November 15, 2012. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a controlled
substance in the third degree, criminal possession of a controlled
substance in the fifth degree and criminal possession of a controlled
substance in the seventh degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, a new trial is granted on the second
and third counts of the indictment, and the fourth count of the
indictment is dismissed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of criminal possession of a controlled substance
in the third degree (Penal Law § 220.16 [1]), the fifth degree (§
220.06 [5]), and the seventh degree (§ 220.03). The charges arose
from the seizure of a baggie containing crack cocaine from a vehicle
in which defendant was a passenger. Contrary to defendant’s
contention, we conclude that County Court properly refused to suppress
tangible property, including the crack cocaine, as the product of an
allegedly illegal search. The evidence at the suppression hearing
supports the court’s determination that the conduct of the police “was
justified in its inception and at every subsequent stage of the
encounter” (People v Nicodemus, 247 AD2d 833, 835, lv denied 92 NY2d
858; see People v De Bour, 40 NY2d 210, 215). The police officer had
an objective, credible reason to approach the parked vehicle and
request information from its occupants (see People v Ocasio, 85 NY2d
982, 985; People v Witt, 129 AD3d 1449, 1450, lv denied 26 NY3d 937).
After the officer observed defendant and another passenger acting
suspiciously, the officer was justified in opening the door and
                                 -2-                          1393
                                                         KA 12-02261

ordering the occupants out of the vehicle (see People v Carter, 60
AD3d 1103, 1105, lv denied 12 NY3d 924). The officer then observed
the baggie containing crack cocaine, which provided probable cause to
seize the cocaine and arrest defendant (see People v Robinson, 38 AD3d
572, 573).

     Viewing the evidence in light of the elements of the crimes as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
conclude that “the verdict, based on the applicability of the
automobile presumption . . . , is not against the weight of the
evidence” (People v Campbell, 109 AD3d 1142, 1142, lv denied 22 NY3d
1039). We reject defendant’s contention that the court erred in
denying his request for substitution of counsel, inasmuch as defendant
did not explicitly request new counsel (see People v Singletary, 63
AD3d 1654, 1654, lv denied 13 NY3d 839), nor did his general
complaints concerning counsel constitute a showing of good cause for
such substitution (see People v Watkins, 77 AD3d 1403, 1404, lv denied
15 NY3d 956).

     We agree with defendant, however, that the judgment of conviction
should be reversed and a new trial granted because the court erred in
summarily denying, as untimely, his request to proceed pro se (see
generally People v McIntyre, 36 NY2d 10, 14). “Although requests [to
proceed pro se] on the eve of trial are discouraged, the Court of
Appeals has found that a request may be considered timely when it is
‘interposed prior to the prosecution’s opening statement,’ as here”
(People v Atkinson, 111 AD3d 1061, 1062, quoting McIntyre, 36 NY2d at
18).

     Finally, as the People correctly concede, the count of criminal
possession of a controlled substance in the seventh degree should be
dismissed as a inclusory concurrent count of either of the remaining
charges (see CPL 300.30 [4]; 300.40 [3] [b]; People v Lee, 39 NY2d
388, 390-391).

     In view of our decision, we do not address the remaining
contentions in defendant’s main and pro se supplemental briefs.




Entered: December 31, 2015                      Frances E. Cafarell
                                                Clerk of the Court
