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

746
KA 12-01694
PRESENT: SMITH, J.P., CENTRA, CARNI, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHRISTOPHER H. ERON, DEFENDANT-APPELLANT.


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

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered September 7, 2012. The judgment convicted
defendant, upon a jury verdict, of aggravated unlicensed operation of
a motor vehicle in the first degree and failure to stay within a
single lane.

     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, inter alia, aggravated unlicensed operation of a motor
vehicle in the first degree (Vehicle and Traffic Law § 511 [3] [a]
[i]), defendant initially contends that County Court erred in denying
his motion to suppress his statements and other evidence seized as the
result of the allegedly unlawful stop of his vehicle. Contrary to
defendant’s contention, the court properly denied that motion.
Affording great deference to the court’s resolution of credibility
issues at the suppression hearing (see generally People v Prochilo, 41
NY2d 759, 761), we conclude that the record supports the court’s
finding that the police officer lawfully stopped defendant’s car for
crossing the white fog line in violation of section 1128 (a) (see
People v Tandle, 71 AD3d 1176, 1177-1178, lv denied 15 NY3d 757;
People v Wohlers, 138 AD2d 957, 957; see generally Whren v United
States, 517 US 806, 810; People v Robinson, 97 NY2d 341, 348-349).

     Defendant failed to preserve for our review his contention that
the verdict was inconsistent inasmuch as he failed to object to the
alleged inconsistency before the jury was discharged (see People v
Alfaro, 66 NY2d 985, 987). In any event, we conclude that defendant’s
contention is without merit (see generally People v Tucker, 55 NY2d 1,
6-8, rearg denied 55 NY2d 1039).
                                 -2-                           746
                                                         KA 12-01694

     Defendant also failed to preserve for our review his challenge to
the legal sufficiency of the evidence inasmuch as he failed to renew
his motion for a trial order of dismissal after presenting evidence
(see People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678). In
any event, that challenge lacks merit (see generally People v
Bleakley, 69 NY2d 490, 495). Viewing the evidence in light of the
elements of the crime and traffic infraction as charged to the jury
(see People v Danielson, 9 NY3d 342, 349), we further conclude that
the verdict is not against the weight of the evidence (see generally
Bleakley, 69 NY2d at 495). “[R]esolution of issues of credibility, as
well as the weight to be accorded to the evidence presented, are
primarily questions to be determined by the jury” (People v
Witherspoon, 66 AD3d 1456, 1457, lv denied 13 NY3d 942 [internal
quotation marks omitted]) and, here, we see no reason here to disturb
the jury’s resolution of those issues.

     Defendant failed to object when a prosecution witness was
permitted to testify while wearing his National Guard uniform, and
thus failed to preserve for our review his contention that he was
thereby denied due process (see generally People v Smikle, 112 AD3d
1357, 1358, lv denied 22 NY3d 1141; People v Caldwell, 98 AD3d 1272,
1272, lv denied 20 NY3d 985). In addition, defendant did not ask that
the jury be instructed that the witness was not more credible merely
because he was wearing a uniform, and thus he also failed to preserve
for our review his contention that the court should have issued such
an instruction (see generally People v Montero, 100 AD3d 1555, 1556,
lv denied 21 NY3d 945; People v Perez, 89 AD3d 1393, 1394, lv denied
18 NY3d 961). We decline to exercise our power to review those
contentions as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]).

     The sentence is not unduly harsh or severe. We have considered
defendant’s remaining contentions and conclude that they are without
merit.




Entered:   July 3, 2014                         Frances E. Cafarell
                                                Clerk of the Court
