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 RiderUlacco 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