| People v McCoy |
| 2009 NY Slip Op 01364 [59 AD3d 856] |
| February 26, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Dale I.McCoy, Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Katherine Henley of counsel), forrespondent.
Cardona, P.J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered February 22, 2008, upon a verdict convicting defendant of the crimesof criminal possession of a controlled substance in the third degree and unlawful possession ofmarihuana.
Defendant was convicted after a jury trial of criminal possession of a controlled substance inthe third degree and unlawful possession of marihuana. On this appeal, defendant contends thathis conviction for criminal possession of a controlled substance in the third degree should bereversed because the People failed to present legally sufficient evidence showing his intent tosell four small packets of heroin found in his pocket.[FN*]We agree. Viewed in the light most favorable to the prosecution (see People v Acosta, 80NY2d 665, 672 [1993]; People vEchavarria, 53 AD3d 859, 862 [2008], lv denied 11 NY3d 832 [2008]), theevidence presented at trial established that at approximately 1:00 a.m. on July 21, 2007 AliceDavid, the clerk at the Cumberland Farms store located on Main Street in the Village of HudsonFalls, Washington [*2]County called police to report thatsomeone was outside the store selling drugs. She placed that call after two separate patrons ofthe store so informed her. One of those patrons displayed to her what appeared to be a bag ofmarihuana.
Patrolman Jeffrey Gaulin responded to the call. On several occasions earlier thatnight—between 11:00 p.m. and 1:00 a.m.—Gaulin had observed defendant, withwhom he was already familiar, standing outside the Cumberland Farms store. When he arrived atthe store in response to David's call, Gaulin observed defendant coming out of the store with asix-pack of beer. Gaulin approached defendant and accused him of selling drugs. At Gaulin'surging, defendant produced a sock containing seven small bags of marihuana. Gaulin thensearched defendant, discovering four individual packets of heroin in his pocket.
As charged here, the crime of criminal possession of a controlled substance in the thirddegree requires proof that defendant possessed the heroin with the intent to sell it (seePenal Law § 220.16 [1]). In that regard, the People presented no direct proof thatdefendant sold or attempted to sell heroin to any individual. Gaulin did not testify to observingsuch a transaction, nor did David. And, notably, although David testified that she had observed amale standing outside the door for about half an hour and that she saw him speak to severalpeople whom she described as behaving nervously, she was not able to describe the man attrial—not even his race—and she was unable to identify defendant as the man inquestion.
Nor is there legally sufficient evidence from which to infer defendant's intent to sell heroin.At the time of his arrest, defendant was carrying no cash beyond a few coins (see People v Jones, 47 AD3d 961,964 [2008], lv denied 10 NY3d 812 [2008]; People v Mendoza, 5 AD3d 810, 813-814 [2004], lvdenied 3 NY3d 644 [2004]). No evidence was presented that he possessed a weapon or anyparaphernalia commonly associated with the sale of drugs (see People v Jones, 47 AD3dat 964; People v Hawkins, 45AD3d 989, 991 [2007], lv denied 9 NY3d 1034 [2008]; People v Barton, 13 AD3d 721,723 [2004], lv denied 5 NY3d 785 [2005]; People v Tarver, 292 AD2d 110, 114[2002], lv denied 98 NY2d 702 [2002]). And, significantly, no testimony established thatthe small quantity of heroin found in his possession was inconsistent with personal use (see People v Patchen, 46 AD3d1112, 1113 [2007], lv denied 10 NY3d 814 [2008]; People v Barton, 13AD3d at 723; People v Tarver, 292 AD2d at 114).
Although the absence of proof of defendant's intent to sell the heroin compels us to concludethat the evidence was not legally sufficient to support a conviction for criminal possession of acontrolled substance in the third degree (see People v Lamont, 227 AD2d 873, 875[1996]), we find that the People did present legally sufficient proof of defendant's knowing andunlawful possession of heroin to support a conviction for the lesser included offense of criminalpossession of a controlled substance in the seventh degree (see Penal Law §220.03; People v Mizell, 72 NY2d 651, 655-656 [1988]; People v Lamont, 227AD2d at 875-876). Accordingly, we modify the judgment of conviction by reducing defendant'sconviction for criminal possession of a controlled substance in the third degree to a convictionfor criminal possession of a controlled substance in the seventh degree (see CPL 470.15[2] [a]).
Defendant's remaining contention that he was denied the effective assistance of trial counselis not persuasive. Counsel made appropriate pretrial motions, conducted brief but effectivecross-examinations that drew forth testimony favorable to defendant's contention that he did notintend to sell the heroin, and consistently pursued that theory during opening and closingstatements. Counsel's failure to make certain objections at trial did not, under these [*3]circumstances, render his representation ineffective.
Peters, Kavanagh and Stein, JJ., concur. Ordered that the judgment is modified, on the law,by reducing defendant's conviction of criminal possession of a controlled substance in the thirddegree to criminal possession of a controlled substance in the seventh degree; vacate thesentence imposed thereon and matter remitted to the County Court of Washington County forresentencing; and, as so modified, affirmed.
Footnote *: This argument was adequatelypreserved by defendant's motion to dismiss count one of the indictment at the close of thePeople's case on the ground that the People failed to prove defendant's intent to sell heroin.