| People v Harvey |
| 2012 NY Slip Op 04426 [96 AD3d 1098] |
| June 7, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JacquesHarvey, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered October 19, 2010, upon a verdict convicting defendant of the crimes of criminalpossession of a controlled substance in the third degree, criminal possession of a controlledsubstance in the fifth degree and criminally using drug paraphernalia in the second degree.
When police officer Josiah Jones arrived to investigate a trespass complaint at a residence inthe City of Albany, he observed two individuals tap on the door and heard them saying "Five-O,"a term commonly used to warn others that police are nearby. After Jones and Officer MatthewFoley gained entrance into the building, they observed defendant drop something—whichturned out to be a digital scale—and run upstairs. As defendant ran upstairs, objects whichwere later identified as rocks of crack cocaine fell from a T-shirt that he was holding. Afterdefendant was stopped and arrested, $853 in cash was found on his person.
Defendant was thereafter indicted and, following a jury trial, was convicted of criminalpossession of a controlled substance in the third degree, criminal possession of a controlledsubstance in the fifth degree and criminally using drug paraphernalia in the second degree. Hewas sentenced to an aggregate prison term of seven years, to be followed by three years ofpostrelease supervision. Defendant now appeals and we affirm.[*2]
Defendant's conviction was not against the weight of theevidence.[FN*]In order to convict defendant, the People were required to prove that defendant knowingly andunlawfully possessed cocaine weighing 500 milligrams or more with the intent to sell it(see Penal Law § 220.06 [5]; § 220.16 [1]), and that he knowingly possesseda scale used to weigh the cocaine under circumstances evincing his intent to unlawfully packageor dispense it (see Penal Law § 220.50 [3]). In addition to the testimony of Jonesand Foley as to their observations of defendant when they entered the premises, a forensicscientist identified the presence of cocaine in the rocks and in residue found on the scale that hadbeen in defendant's possession. Jones testified that, based on his training and experience, theamount of cocaine found—4.3 grams—and the way in which it was broken up,together with the scale, the absence of a pipe or other means of smoking the cocaine, the $853recovered from defendant's person, and the fact that defendant was unemployed, indicated thatthe cocaine was intended to be sold and not personally used by defendant.
On the other hand, Jameer Boyd—who was also arrested at the scene—testifiedfor the defense that the cocaine and scale belonged to him and that he threw them when thepolice arrived. Testifying on his own behalf, defendant's explanation for his presence at thescene, his attempt to run from the police and his possession of $853 was that he had beengambling there. He testified that he saw Boyd weighing the cocaine and that, while at the policestation, he had convinced Boyd to "own up" to possessing the drugs, notwithstanding Boyd'srepeated denials of ownership of the cocaine while at the scene. The accounts given by defendantand Boyd were in direct contrast, not only to the testimony of both police officers regarding theirobservations of defendant at the scene, but also to Foley's testimony that he had chased Boyd anddid not see him drop anything. Jones and another officer further testified that, after defendantcommunicated with Boyd at the booking station, Boyd appeared distressed and spontaneouslystated to Jones that the cocaine belonged to him and not to defendant.
Even if a different finding would not have been unreasonable, when we view the evidence ina neutral light and defer to the jury's superior position to determine witness credibility (see People v Newland, 83 AD3d1202, 1205 [2011], lv denied 17 NY3d 798 [2011]), we find that the jury accordedthe evidence its proper weight (seePeople v Romero, 7 NY3d 633, 643-644 [2006]; People v Bleakley, 69 NY2d490, 495 [1987]; People v Rolle, 72AD3d 1393, 1396 [2010], lv denied 16 NY3d 745 [2011]). The identity of thecocaine and its weight are undisputed, and the evidence establishing defendant's possession ofthe cocaine and the scale was overwhelming. Additionally, the requisite intent to sell can beinferred from the amount of [*3]cocaine recovered, the manner inwhich it was divided, the amount of money found on defendant's person and the presence of thedigital scale (see People v James, 90AD3d 1249, 1250 [2011], lv denied 18 NY3d 958 [2012]; People v Hunter, 73 AD3d 1279,1281 [2010]; People v Barton, 13AD3d 721, 723 [2004], lv denied 5 NY3d 785 [2005]). Moreover, the People'sevidence was not significantly impeached by cross-examination or called into doubt by theevidence presented by defendant.
We also reject defendant's assertion that he was denied the effective assistance of counsel.Defendant was not entitled to a perfect trial (see People v Elwood, 80 AD3d 988, 990 [2011], lv denied16 NY3d 858 [2011]) and, in any event, has not demonstrated the absence of strategic or otherlegitimate explanations for counsel's alleged deficiencies with regard to her questioning on directexamination and her failure to object to certain questions posed by the prosecutor (see People v Kuforiji, 88 AD3d1165, 1166 [2011]). Nor does counsel's failure to preserve defendant's legal sufficiencyargument, alone, establish ineffective assistance (see People v Elwood, 80 AD3d at 990;People v Monette, 70 AD3d1186, 1188 [2010], lv denied 15 NY3d 776 [2010]; People v Smith, 66 AD3d 1223,1225 [2009], lv denied 14 NY3d 773 [2010]). Moreover, defense counsel filedappropriate pretrial and posttrial motions, obtained a Sandoval compromise,cross-examined witnesses, delivered articulate opening and closing statements and presented acogent defense theory despite overwhelming evidence of defendant's guilt. Viewing the evidence,the law and the circumstances of the case in totality and as of the time of the representation, weare satisfied that defendant was provided meaningful representation (see People v Baldi,54 NY2d 137, 147 [1981]; People vNguyen, 90 AD3d 1330, 1335 [2011], lv denied 18 NY3d 960 [2012]).
Defendant's sentence was not harsh or excessive. The fact that Boyd received a lessersentence for the same crime does not warrant a reduction of defendant's sentence (see People v Montgomery, 21 AD3d1148, 1149 [2005], lv denied 5 NY3d 855 [2005]). Moreover, defendant wassentenced as a second felony offender, has a prior felony drug conviction, has not takenresponsibility for his actions, was on parole at the time of this offense and has previously violatedhis parole. Defendant has failed to demonstrate any extraordinary circumstances or abuse ofCounty Court's discretion warranting a reduction of the sentence in the interest of justice (see People v Ardrey, 92 AD3d967, 971 [2012]; People vLettley, 85 AD3d 1447, 1448 [2011]).
We have examined the defendant's remaining contentions and find them to be lacking inmerit.
Peters, P.J., Mercure, McCarthy and Garry, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Defendant's generalized motionfor a trial order of dismissal was insufficient to preserve his challenge to the legal sufficiency ofthe evidence (see People v Hawkins,11 NY3d 484, 492 [2008]; People v Gray, 86 NY2d 10, 19 [1995]; People v Malcolm, 74 AD3d 1483,1484 n [2010], lv denied 15 NY3d 954 [2010]). However, in addressing his argumentthat the verdict is against the weight of the evidence, we will necessarily evaluate whether theelements of the crimes charged were adequately proven at trial (see generally People v Danielson, 9NY3d 342, 349 [2007]; People vGarcia, 79 AD3d 1248, 1250 [2010], lv denied 16 NY3d 797 [2011]; People v Jones, 79 AD3d 1244,1246 [2010], lv denied 16 NY3d 832 [2011]).