| People v Jones |
| 2008 NY Slip Op 00003 [47 AD3d 961] |
| January 3, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Robert EarlJones, Also Known as Bam Bam, Appellant. |
—[*1] Stephen F. Lungen, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered April 6, 2006, upon a verdict convicting defendant of the crimes of criminal possessionof a controlled substance in the first degree, criminal possession of a controlled substance in thethird degree and criminally using drug paraphernalia in the second degree (two counts).
In May 2005, after weeks of surveillance, defendant and his girlfriend, Sharon Maldonado,were arrested and later indicted on various drug charges after members of the Mid-Hudson DrugTask Force executed a no-knock search warrant at the home of Maldonado's parents in theVillage of Monticello, Sullivan County. Upon entering, police discovered large quantities of bothcrack cocaine (over 12 ounces, with a total street value of over $40,000) and heroin inMaldonado's bedroom and the bathroom. Defendant was apprehended while exiting thebathroom, where police found in the toilet, among other things, bags containing over 100 packetsof crack cocaine individually packaged in tin foil, 60 decks (or packets) of heroin packaged inrice, and uncut rocks of cocaine and heroin. A large amount of cash was found on defendant'sperson stuffed into his pants.
Prior to trial, defense counsel submitted defendant's omnibus motion seeking [*2]suppression of all physical evidence which, he argued, was obtainedas a result of defendant's warrantless arrest, without probable cause. The People opposed, arguingthat a valid search warrant had been properly issued, providing a legal basis for the police entry,and that defendant's arrest and search incident to his arrest were lawful and based upon probablecause. County Court ordered, among others, Mapp and Dunaway hearings. Jointsuppression hearings were held on defendant's and Maldonado's various suppression motions,after which the court severed the top count of the indictment (for a drug sale on another date) andmade certain rulings, but reserved decision and requested counsel to submit memoranda of lawon the search and seizure issues. Soon thereafter, new counsel was assigned, apparently due toscheduling conflicts. Defendant's trial began on December 14, 2005 without the court havingrendered the required "on the record" determination of his motion to suppress (see CPL710.40 [3]; 710.60 [6]). Maldonado entered a guilty plea at the start of the trial, and the physicalevidence sought to be suppressed was introduced at defendant's trial without objection.Defendant was convicted of one count each of criminal possession of a controlled substance inthe first degree and third degree and two counts of criminally using drug paraphernalia in thesecond degree.
After the verdict, defendant moved pursuant to CPL 330.30 to set it aside on numerousgrounds, including the ineffective assistance of trial counsel. County Court granted trial counsel'srequest to withdraw, assigned new counsel for defendant, and ordered a hearing on his motion.Prior to the hearing, the court orally ruled, for the first time, on defendant's undecided motion tosuppress, stating, "Defendant has no standing whatsoever to contest the legality of the search ofMs. Maldonado's bedroom and the Maldonado apartment."[FN1]After the hearing at which defendant's trial counsel testified, County Court denied the CPL330.30 motion. Defendant was sentenced, following a hearing, as a persistent felony offender toan aggregate prison term of 25 years to life. Defendant now appeals.
Initially, defendant challenges County Court's failure to comply with CPL 710.60 (6) and710.40 (3) and argues that all of the evidence should have been suppressed due to inadequacies inthe search warrant. He is, of course, correct that where, as here, a defendant has made a pretrialmotion to suppress evidence, "the trial may not be commenced until determination of the motion"(CPL 710.40 [3]) and, "[r]egardless of whether a hearing was conducted, the court, upondetermining the motion, must set forth on the record its findings of fact, its conclusionsof law and the reasons for its determination" (CPL 710.60 [6] [emphasis added]). County Court'sfailure to do either was clear error.[FN2][*3]
In any event, defendant's omnibus motion, which wassupported only by an affidavit of counsel, did not in fact challenge the issuance or execution ofthe search warrant; also, no renewal motion was made after the People opposed defendant'smotion, relying upon the search warrant documents attached to their papers (see CPL710.40 [4]; cf. People v Long, 36AD3d 132, 135 [2006], affd 8 NY3d 1014 [2007]). Indeed, defendant's motionpapers did not even claim entitlement to, or allege a legal basis for, suppression based upon theinvalidity of the search warrant (see CPL 710.60 [3] [a]), or contain the requisite swornallegations of fact supporting such relief (see CPL 710.60 [1], [3] [b]); as such, defendantwas not entitled to a hearing on that issue (see People v Mendoza, 82 NY2d 415, 420,425-430 [1993]; see also People v Gadsden, 273 AD2d 701, 701-702 [2000], lvdenied 95 NY2d 934 [2000]; cf.People v Bryant, 8 NY3d 530, 533-534 [2007]; People v Burton, 6 NY3d 584, 587 [2006]).
In addition, viewed in context and given the information available to defendant (seePeople v Mendoza, 82 NY2d at 426-429), his allegations were deficient; the People did notwaive that deficiency at or after the suppression hearing (see id. at 430). Moreover, we donot interpret County Court's conduct in these joint, fragmented suppression hearings to be anexercise of discretion to consider defendant's motion as a challenge to the search warrant despitethe deficiencies in his pleadings (see id. at 429-430). Given the foregoing, the court'sfailure to render a determination prior to trial was harmless (see People v Keller, 194AD2d 877, 878-879 [1993], lv denied 81 NY2d 1074 [1993]).
Were we to reach the merits, we discern no error in County Court's ultimate denial ofdefendant's motion. It was not demonstrated at the suppression hearing (or even alleged indefendant's papers) that defendant had a legitimate expectation of privacy in the Maldonadohome (see People v Wesley, 73 NY2d 351, 358-359 [1989]; see also People vBurton, 6 NY3d at 587-588; People v Ramirez-Portoreal, 88 NY2d 99, 108 [1996];People v Cleveland, 14 AD3d798, 799 [2005], lv denied 4 NY3d 829 [2005]). Further, although defendant did notargue the issue, we find that he was not entitled to automatic standing based upon the People'sintent (or need) to rely exclusively on the statutory "room presumption" to prove these possessorycrimes (see Penal Law § 220.25 [2]); notably, the proof at the hearing did notpreclude the People's reliance on ordinary constructive possession principles (see People vTejada, 81 NY2d 861, 862 [1993]; People v Ayers, 214 AD2d 459, 459 [1995],lv denied 86 NY2d 732 [1995]; see also People v Manini, 79 NY2d 561, 573[1992]).[FN3]Indeed, the testimony at the suppression hearing demonstrated that some of the drugs whichdefendant was charged with possessing were not in "open view" or in "close proximity" to him soas to enable the People to rely exclusively on the "room presumption" (see Penal Law§ 220.25 [2]). Thus, we find no error.
Defendant's remaining claims are also unpersuasive. No objection was registered to thePeople's introduction into evidence of cash in excess of $8,000 found on or near defendant'sperson at the time of the execution of the search warrant (see CPL 470.05 [2]). In anyevent, [*4]evidence of the possession of a large quantity of cash,coupled with other items commonly associated with drug trafficking (plastic baggies, tin foil, arazor, prepackaged small bags of drugs, a digital scale, a cash register and cell phones), wasrelevant to defendant's intent to sell, an element of criminal possession of a controlled substancein the third degree (see Penal Law § 220.16 [1]; People v Tronchin, 233AD2d 767, 768 [1996], lv denied 90 NY2d 1015 [1997]; see also People v Mendoza, 5 AD3d810, 813 [2004], lv denied 3 NY3d 644 [2004]; People v Tarver, 292 AD2d110, 114 [2002], lv denied 98 NY2d 702 [2002]). Defendant's claim that he was deniedmeaningful representation at trial was not demonstrated at the hearing on his CPL 330.30 motion(for which he was assigned substitute counsel), and has not been shown on appeal given ourrejection of most of the underlying grounds for this claim (see People v Benevento, 91NY2d 708, 712 [1998]). Counsel successfully obtained severance of the top count of theindictment, effectively cross-examined the key witnesses, and pursued a logical, albeit ultimatelyunsuccessful, defense that the drugs and paraphernalia did not belong to defendant, who was onlycoincidentally present when the warrant was executed; trial counsel testified at the hearingregarding his preparation for trial and the strategic reason (to which defendant agreed) for notcalling Maldonado to testify. The verdict is attributable to the compelling evidence of defendant'sguilt and not to the deficiencies of trial counsel, whose errors were not so "egregious andprejudicial" as to have compromised defendant's right to a fair trial (People v Caban, 5 NY3d 143, 152[2005]).
Finally, defendant's contentions that the proper procedures were not followed (seeCPL 400.20) in sentencing him as a persistent felony offender are belied by the record, andsimilar challenges to the constitutionality of that statutory scheme have been repeatedly rejectedby the Court of Appeals (see People vWest, 5 NY3d 740, 741 [2005], cert denied 546 US 987 [2005]; People v Rivera, 5 NY3d 61, 67[2005], cert denied 546 US 984 [2005]; People v Rosen, 96 NY2d 329 [2001],cert denied 534 US 899 [2001]).
Cardona, P.J., Peters, Carpinello and Lahtinen, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: County Court never ruled ondefendant's challenge to his arrest, and defendant does not pursue that issue on appeal or arguethat it constituted ineffective assistance of counsel.
Footnote 2: It has been held that a defendantwho proceeds to trial without a suppression ruling and fails to object to the admission of thesubject evidence at trial waives any objection to the irregularity (see People v Murray, 7 AD3d 828,830 [2004], lv denied 3 NY3d 679 [2004]; People v Wright, 5 AD3d 873, 875 [2004], lv denied 3NY3d 651 [2004]). However, given that defendant raises this issue as part of his ineffectiveassistance of counsel claim, we address it in that context.
Footnote 3: Notably, also at trial the Peoplerelied on principles of ordinary constructive possession, and the jury was charged thereon.