                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 21, 2016                   106465
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

DERICK L. SINGLETON,
                    Appellant.
________________________________


Calendar Date:   November 17, 2015

Before:   Lahtinen, J.P., Garry, Rose, Lynch and Devine, JJ.

                             __________


     Mark Diamond, Albany, for appellant.

      Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-
Ulacco of counsel), for respondent.

                             __________


Devine, J.

      Appeal from a judgment of the County Court of Chemung
County (Hayden, J.), rendered November 22, 2013, upon a verdict
convicting defendant of the crime of criminal possession of a
controlled substance in the third degree (two counts).

      On March 2, 2013, Jelene Peck was driving a vehicle with
two passengers, Wade Smith and defendant, in the City of Elmira,
Chemung County. A police officer observed an air freshener
hanging from the rear view mirror that purportedly obstructed
Peck's view through the windshield (see Vehicle and Traffic Law
§ 375 [30]), and he proceeded to stop the vehicle. A routine
check determined that defendant had active warrants against him
and, as defendant was exiting the vehicle to be placed under
arrest, the officer observed a crack pipe on the floorboard. The
                              -2-                106465

officer obtained Peck's consent to search the vehicle and
discovered a small baggie of crack cocaine near the driver's side
door, as well as three larger baggies of crack cocaine wedged
between the driver's seat and the center console.

      Defendant, who had been sitting in the front passenger
seat, was thereafter charged in an indictment with two counts of
criminal possession of a controlled substance in the third
degree. Following a Mapp hearing, his motion to suppress the
evidence recovered in the search of the vehicle was denied. The
first trial on the indictment ended when the People elicited
testimony violative of County Court's Molineux ruling, prompting
defendant to successfully move for a mistrial. County Court held
that a retrial was not barred by double jeopardy and, at the
conclusion of the second trial, defendant was convicted as
charged. County Court sentenced defendant, a second felony
offender, to concurrent prison terms of six years to be followed
by postrelease supervision of three years. Defendant appeals,
and we affirm.

      Defendant contends that the second trial was barred by
double jeopardy but, because he was the one who sought the
mistrial, such would only be the case if "the prosecution
deliberately provoke[d]" him into doing so (Matter of Davis v
Brown, 87 NY2d 626, 630 [1996]; see Matter of Gorghan v
DeAngelis, 7 NY3d 470, 473 [2006]; Matter of Phillips v
Carnright, 66 AD3d 1319, 1320 [2009]). In that regard, Peck was
expected to testify that she and Smith had known defendant for
about six months before March 2013, and that they often gave
defendant rides. County Court issued a Molineux ruling barring
the People from eliciting testimony revealing that defendant paid
for those rides with crack cocaine. Peck made no mention of the
prior exchanges of drugs during her testimony at the first trial,
but Smith answered a vague question about "the nature of [his]
relationship" with defendant by saying that "[i]t was strictly
cocaine." There is no indication in the record that the People
asked this question in a gambit to goad defendant into moving for
a mistrial due to fear that "the case [was] headed toward
acquittal," a fear that would have been misguided given the
evidence already introduced that defendant had possessed a large
quantity of crack cocaine and other items indicating that he was
                              -3-                106465

involved in the drug trade at the time of the traffic stop
(Matter of Davis v Brown, 87 NY2d at 630; see Matter of Phillips
v Carnright, 66 AD3d at 1320; People v Stewart, 57 AD3d 1312,
1313 [2008], lv denied 12 NY3d 788 [2009], cert denied 558 US
1116 [2010]). The questioning by the People may have been
indicative of intemperate advocacy "inten[ded] to secure a
conviction," but "a new, fair trial" is the proper remedy for
such excesses (Matter of Gorghan v DeAngelis, 7 NY3d at 474).

      Count 2 of the indictment charged defendant with "knowingly
and unlawfully possess[ing]" crack cocaine "of an aggregate
weight of one-half ounce or more," and he argues that his
conviction on that count was against the weight of the evidence
(Penal Law § 220.16 [12]).1 Defendant does not take issue with
the proof presented to show that he knowingly and unlawfully
possessed the cocaine which, in any case, is amply established by
Peck's testimony. Defendant instead asserts that proof of the
aggregate weight is wanting, but a forensic scientist testified
that he used a scale in good working order to determine that the
cocaine found in two of the baggies weighed "[a]pproximately
14.47 grams," well over the 14.17 grams equivalent to half an
ounce. He further testified that he did not weigh the cocaine in
a third baggie, as laboratory policy dictated that he "test
[only] to the highest possible charge." Viewing this proof in a
neutral light and according appropriate deference to the
credibility determinations of the jury, we do not find the
conviction on count 2 to be against the weight of the evidence
(see People v Parker, 84 AD3d 1508, 1509-1510 [2011], lv
denied 18 NY3d 927 [2012]; People v Butler, 190 AD2d 743, 743-744
[1993], lv denied 81 NY2d 968 [1993]). Moreover, inasmuch as
sufficient proof was presented with regard to the weight of the
cocaine, defense counsel was not ineffective in failing to
specifically move for a trial order of dismissal on that basis


    1
        Defendant appears to acknowledge that his challenge to
the legal sufficiency of the evidence is unpreserved (see People
v Hawkins, 11 NY3d 484, 492 [2008]); regardless, "a weight of the
evidence challenge, which bears no preservation requirement, also
requires consideration of the adequacy of the evidence as to each
element of the crimes" (People v Cruz, 131 AD3d 724, 725 [2015]).
                              -4-                  106465

(see People v Card, 115 AD3d 1007, 1008-1009 [2014], lv denied 23
NY3d 961 [2014]).

      Defendant next asserts that the officer who stopped the
vehicle did not have probable cause to do so, and that the drugs
recovered from that vehicle should have been suppressed. County
Court credited the suppression hearing testimony of the officer
that he stopped the vehicle after observing a large object, which
he later identified as an air freshener, hanging from the rear
view mirror in a manner that could have prevented the driver from
seeing a vehicle through the windshield. Probable cause
therefore existed to justify the stop, even if one may reasonably
wonder whether the violation of Vehicle and Traffic Law § 375
(30) was "the primary motivation of the officer" for making it
(People v Robinson, 97 NY2d 341, 349 [2001]; see People v
Bookman, 131 AD3d 1258, 1260-1261 [2015]; People v Rasul, 121
AD3d 1413, 1415 [2014]).

      Defendant lastly argues that County Court erred in
sentencing him as a second felony offender, but that issue is
unpreserved due to his failure to object at sentencing, and we
perceive no reason to exercise our interest of justice
jurisdiction to reverse or modify on that issue (see CPL 470.15
[3] [c]; People v Lowell, 126 AD3d 1235, 1235 [2015], lv denied
25 NY3d 1167 [2015]; People v Dixon, 118 AD3d 1188, 1189 [2014]).

     Lahtinen, J.P., Garry, Rose and Lynch, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
