Appeal from a judgment of the Erie County Court (Timothy J. Drury, J.), rendered September 13, 2006. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the fourth degree.
It is hereby ordered that the judgment so appealed from is affirmed and the matter is remitted to Erie County Court for proceedings pursuant to CPL 460.50 (5).
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09 [1]). He contends that County Court erred in refusing to suppress evidence seized from his vehicle because the police engaged in subtle psychological coercion in obtaining his consent to search the vehicle, rendering his consent involuntary. That contention is not preserved for our review (see CPL 470.05 [2]), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We reject the further contention of defendant that the police officer lacked the requisite “founded suspicion that criminal activity [was] afoot” to justify his request to search the vehicle (People v Tejeda, 217 AD2d 932, 933 [1995], lv denied 87 NY2d 908 [1995]; see generally People v Hollman, 79 NY2d 181, 185-186 [1992]). Also contrary to the contention of defendant, the court properly denied his Batson challenge inasmuch as he failed to meet his burden of establishing a prima facie case of discrimination (see generally People v Bolling, 79 NY2d 317, 320 [1992]). Finally, the sentence is not unduly harsh or severe.
All concur except Pine, J, who dissents and votes to hold the case, reserve decision and remit the matter to Erie County Court for a hearing in accordance with the following memorandum.