| People v Patchen |
| 2007 NY Slip Op 09973 [46 AD3d 1112] |
| December 20, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Charles A.Patchen, Appellant. |
—[*1] John R. Trice, District Attorney, Elmira (Damian M. Sonsire of counsel), forrespondent.
Cardona, P.J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.),rendered July 18, 2006, upon a verdict convicting defendant of the crime of criminal possessionof a controlled substance in the third degree.
Following a jury trial, defendant was found guilty of criminal possession of a controlledsubstance in the third degree based upon his possession of 9.2 ounces of methamphetamine. Onthis appeal, he makes two arguments in support of his contention that the verdict was notsupported by legally sufficient evidence. Specifically, he argues that (1) the testimony of hisaccomplice was uncorroborated, and (2) insufficient evidence was presented on the element of"intent to sell" (Penal Law § 220.16 [7]).
"Although a conviction may not rest on accomplice testimony alone (see CPL 60.22),the corroboration requirement is satisfied when the record contains credible, probative evidenceestablishing the reliability of [that] testimony" (People v Arrington, 31 AD3d 801, 803 [2006], lv denied 7NY3d 865 [2006] [citation omitted]; seePeople v Baldwin, 35 AD3d 1088, 1090 [2006]). Here, defendant's girlfriend, RobinHart, was a passenger in her own vehicle when defendant, who was driving, was stopped for atraffic violation.[FN*]According to Hart's testimony, [*2]at the time of the stop,defendant handed her a tin containing the methamphetamine, saying " '[h]ere, take this,' " and shethen placed the tin between her seat and the center console of the car. She further testified thatshe recognized the tin container as belonging to defendant. This testimony was sufficientlycorroborated by physical evidence recovered from the vehicle; specifically, a power converter,exhaust fan, heater, thermometer, propane tanks, lithium batteries, plastic tubing and coffeefilters, all of which both State Police Investigator Jeffrey Gotschall and State Police SeniorInvestigator Vincent Breslin testified are commonly used in manufacturing methamphetamine.Defendant's possession of these materials was probative of his knowledge of and intent topossess methamphetamine (see People vSawyer, 23 AD3d 845, 846 [2005], lv denied 6 NY3d 852 [2006]). Additionally,Gotschall testified that while defendant and Hart were being detained at the barracks, heoverheard defendant say to Hart, "Okay, Robin, this is just like before, okay?" to which sheresponded, "Oh, okay. We found the stuff in the woods." Taken together, this evidence wassufficient to corroborate Hart's trial testimony and connect defendant to the commission of thecrime (see People v Cross, 25 AD3d1020, 1023 [2006]).
Hart's further testimony that defendant supplied her with methamphetamine just a few weeksbefore his arrest, coupled with testimony by Breslin that the amount of methamphetaminecontained in the tin was not consistent with personal use, is sufficient to satisfy the "intent tosell" element, particularly since the term " '[s]ell' means to sell, exchange, give or disposeof to another, or to offer or agree to do the same" (Penal Law § 220.00 [1] [emphasisadded]). Viewing the evidence in the light most favorable to the People, we conclude that "thereis [a] valid line of reasoning and permissible inferences which could lead a rational person to theconclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfythe proof and burden requirements for every element of the crime charged" (People vBleakley, 69 NY2d 490, 495 [1987] [citation omitted]; see People v Barton, 13 AD3d 721, 723 [2004], lv denied 5NY3d 785 [2005]). Furthermore, upon our independent review of the record, and accordingdeference to the jury's credibility determinations, we conclude that the verdict was not against theweight of the evidence (see People v Bleakley, 69 NY2d at 495-496; People v Jordan, 34 AD3d 927,929 [2006], lv denied 8 NY3d 881 [2007]).
Defendant next argues that County Court erred in denying his CPL 330.30 motion to setaside the verdict based on newly discovered evidence. In that motion, defendant noted that Harttestified at trial that the People had agreed to charge her with a misdemeanor for which shewould receive no jail time in exchange for her testimony against defendant; however, a weekafter trial, the People dismissed all charges against her. Defendant claims that the dismissalproves that the People failed to reveal the true nature of the plea agreement prior to his trial andthus violated Brady v Maryland (373 US 83 [1963]) by withholding exculpatoryinformation from him. However, in response to defendant's motion, the People submittedaffidavits from both Hart's attorney and an Assistant District Attorney which stated that thedecision to dismiss the charges against Hart was made after defendant's trial, when itbecame clear that her testimony at the trial was inconsistent with the charge against her. At thesubsequent hearing, defendant did not refute the facts as set forth in those affidavits.Accordingly, we find no error in County Court's denial of the motion.[*3]
Defendant also contends that trial counsel was ineffectivein that, among other things, he failed to make appropriate objections. However, we discern nobasis for the specific objections that defendant enumerates (see CPL 710.30; People v Cole, 24 AD3d 1021,1025 [2005], lv denied 6 NY3d 832 [2006]; People v Wright, 5 AD3d 873, 875-876 [2004], lv denied 3NY3d 651 [2004]). Further, we note that while a defendant is entitled to meaningfulrepresentation, "meaningful representation does not require perfection" (People v Anderson, 38 AD3d1061, 1063 [2007], lv denied 8 NY3d 981 [2007]; see People v Wright, 5AD3d at 877). Here, counsel made appropriate motions, effectively participated in aSandoval hearing, cross-examined witnesses, requested appropriate jury charges andmade opening and closing statements. Overall, defendant received meaningful representation(see People v Henry, 95 NY2d 563, 565-566 [2000]; People v Stephens, 31 AD3d 890, 892 [2006], lv denied 7NY3d 870 [2006]).
Finally, given defendant's criminal history, including the fact that at the time of his arrest inthis case he was under federal parole supervision for a December 2004 conviction for possessionwith intent to distribute methamphetamine, we are not persuaded that his sentence of 12 years inprison with three years of postrelease supervision is harsh and excessive (see People v Hutcherson, 25 AD3d912, 914-915 [2006], lv denied 6 NY3d 849 [2006]; People v Reid, 12 AD3d 719, 721[2004], lv denied 4 NY3d 767 [2005]).
Defendant's remaining contentions have been considered and found to be without merit.
Crew III, Mugglin, Rose and Kane, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: State Trooper Andrew Sperr, theofficer who stopped the vehicle, died in the line of duty prior to the trial in this matter and was,therefore, unavailable to testify.