Cite as: The People v. Michael Lynch, 570199/12, NYLJ 1202581743913, at *1 (Sup., App. Tm., 1st, Decided September 7, 2012)

Before: Shulman, J.P., Hunter Jr., Torres, JJ.

Decided: September 7, 2012




Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Frank P. Nervo, J.), rendered October 18, 2011, convicting him, after a nonjury trial, of criminal possession of marihuana in the fifth degree, and imposing sentence.


Judgment of conviction (Frank P. Nervo, J.), rendered October 18, 2011, affirmed.

The court properly denied defendant's suppression motion. There is no basis to disturb the court's credibility determinations, which are supported by the record (see People v. Prochilo, 41 NY2d 759, 761 [1977]). Defendant was arrested on the basis of the arresting police officer's observation of marihuana in open view. The




officer's credited testimony as to his training and experience in marihuana-related arrests permitted the inference that he could identify as marihuana the green substance contained in the "yellow tint[ed]" ziplock bags that defendant, at close range, was seen holding and, upon the officer's approach, putting in his front waistband (see People v. Tsouristakis, 82 AD3d 612 [2011], lv denied 17 NY3d 810 [2011]).

The verdict was supported by legally sufficient evidence and was not against the weight of the evidence. We similarly find no basis to disturb the trial court's credibility determinations.

Nor do we find merit in the alleged trial errors assigned by defendant as grounds for reversal. The court appropriately exercised its broad discretionary authority (see People v. Singleton, 41 NY2d 402 [1977]) in denying defendant's mid-trial request for an adjournment of unspecified duration so that defense counsel could further review audiotapes of jailhouse telephone conversations between defendant and a defense witness. Counsel's review of the audiotapes — which, undisputedly, were not discoverable in the first instance — did not implicate a




fundamental right, and any curtailment of such review was not shown to have caused defendant undue prejudice (see People v. Marcus, 255 AD2d 109 [1998], lv denied 93 NY2d 974 [1999]; cf. People v. Spears, 64 NY2d 698 [1984]). Further, the court properly declined to draw a missing witness inference with respect to the nontestifying police officer, in view of defendant's failure to establish prima facie that the uncalled police witness would have provided noncumulative testimony favorable to the defense (see People v. Gonzales, 68 NY2d 424 [1986]).