People v Calderon

People v Calderon 2012 NY Slip Op 01496 Decided on February 28, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 28, 2012
Friedman, J.P., Sweeny, Renwick, DeGrasse, Román, JJ.
6822 4911/09

[*1]The People of the State of New York, Respondent,

v

Martin Calderon, Defendant-Appellant.




Richard M. Greenberg, Office of the Appellate Defender, New
York (Rosemary Herbert of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Matthew T.
Murphy of counsel), for respondent.

Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered March 16, 2010, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a term of 2½ years, unanimously affirmed.

The court properly denied defendant's suppression motion. Defendant argues that the police lacked the necessary predicate for requesting permission to search the car in which he was riding. At the suppression hearing, defendant raised other issues relating to the driver's consent. However, he never alerted the court to the particular issue raised on appeal, and the court did not "expressly decide[ ]" (CPL 470.05[2]) that issue (see People v Turriago, 90 NY2d 77, 83-84 [1997]; see also People v Colon, 46 AD3d 260, 263 [2007]). Accordingly, we decline to review this claim in the interest of justice. As an alternative holding, we find that the police had, at least, a sufficient basis to ask the driver of the car for permission to search (see People v Brooks, 23 AD3d 847, 849 [2005], lv denied 6 NY3d 810 [2006]; People v Martin, 50 AD3d 1169[2008]). Defendant complains that some of the People's arguments are raised for the first [*2]time on appeal. However, this is a consequence of the procedural posture of the case, in which defendant did not litigate the present issue. In any event, the People's arguments are supported by the hearing evidence.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 28, 2012

CLERK