| People v VanVorst |
| 2014 NY Slip Op 04081 [118 AD3d 1035] |
| June 5, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Adam VanVorst, Appellant. |
Kindlon Shanks & Associates, Albany (Lee C. Kindlon of counsel), forappellant.
P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the Supreme Court (Lamont, J.), renderedNovember 30, 2012 in Albany County, upon a verdict convicting defendant of the crimeof criminal possession of marihuana in the first degree.
Following a jury trial, defendant was convicted of criminal possession of marihuanain the first degree stemming from his acceptance of a package containing over 10 poundsof marihuana that was delivered to his home address. Supreme Court sentenced him to3
Defendant contends that his conviction is against the weight of the evidence due tothe People's failure to establish his knowledge that the package contained marihuana. Wedisagree. A person is guilty of criminal possession of marihuana in the first degree whenhe or she knowingly and unlawfully possesses more than 10 pounds of marihuana(see Penal Law § 221.30; People v Guerrier, 46 AD3d 937, 938 [2007], lvdenied 9 NY3d 1034 [2008]; People v Burns, 17 AD3d 709, 710 [2005]). A defendant'sknowledge that he or she possesses marihuana may be established by circumstantialevidence, such as his or her conduct, and "possession alone suffices to permit theinference that the possessor knows the nature of what is possessed" (People vSanchez, 86 NY2d 27, 33 [1995] [emphasis omitted]; see People v Hardy,232 AD2d 769, 770 [1996], lv denied 89 NY2d 923 [1996]).
[*2] Defendant, whose true name is Adam VanVorst,stipulated at trial that the package contained more than 10 pounds of marihuana. Thepackage bore defendant's postal address but named "Matt Vanvoorst" as the intendedrecipient, a name which was not linked to defendant's address and did not exist in thestate law enforcement databases. The postal inspector who delivered the packagepursuant to a controlled delivery testified that defendant opened the door to his apartmentbuilding even before she rang the apartment's doorbell and he nodded affirmatively whenasked if he was Matt Vanvoorst. According to the inspector, when she asked defendantto help her retrieve the package from the postal vehicle, he followed her slowly,repeatedly looking from side to side, and moved more quickly once he picked up thepackage and started back toward his apartment. When the inspector told defendant thatthe package had been missent, he acknowledged that it was late and, when she asked himto print his name acknowledging receipt of the package, he printed "M." After signingfor the package, law enforcement officers arrested him.
Upon entering defendant's apartment,[FN*]members of the Drug EnforcementAdministration observed several individuals inside and detected a strong odor ofmarihuana. At trial, defendant's roommate testified that the day before the marihuanadelivery he was asked by defendant to sign for an expected mail delivery of an auto part.This witness testified further that, in the months subsequent to defendant's arrest, no suchpackage was received. Testimony also established that defendant returned to theapartment in the days following his arrest and apologized to the roommate and hisgirlfriend for the incident. Although a search of defendant's room yielded no drugparaphernalia and, other than the package itself, there was no evidence linking defendantto the sender in Wisconsin, upon viewing the evidence in a neutral light and weighingthe probative force of the testimony and the strength of the inferences that can be drawntherefrom, we find that the verdict was not contrary to the weight of the evidence (seePeople v Guerrier, 46 AD3d at 938; People v Moore, 17 AD3d 786, 789 [2005], lvdenied 5 NY3d 792 [2005]; compare People v Walzer, 227 AD2d 945,945-946 [1996], lv denied 88 NY2d 1072 [1996]).
We likewise reject defendant's assertion that he was deprived of a fair trial as a resultof prosecutorial misconduct. The majority of his claims are unpreserved for our reviewdue to his failure to object to them at trial (see People v Green, 119 AD3d23, 29-31 [2014]; People v Head, 90 AD3d1157, 1158 [2011]). To the extent that defendant preserved his claim regarding thePeople's alleged attempt to shift the burden of proof during summation, Supreme Courtgave a prompt and adequate curative instruction that served to ameliorate any prejudiceto defendant (see People vTerry, 85 AD3d 1485, 1487 [2011], lv denied 17 NY3d 862 [2011]; People v Anderson, 48 AD3d896, 897 [2008], lv denied 10 NY3d 859 [2008]; People v Williams, 40 AD3d1364, 1367 [2007], lv denied 9 NY3d 927 [2007]). Even considering all ofthe challenged remarks, we find no "flagrant and pervasive pattern of prosecutorialmisconduct so as to deprive [defendant] of a fair trial" (People v Green, —AD3d at &mdash, 2014 NY Slip Op 03303 at *6 [internal quotation marks, brackets andcitations omitted]; see People vKindred, 100 AD3d 1038, 1040 [2012], lv denied 21 NY3d 913 [2013];People v Wright, 88 AD3d1154, 1158 [2011], lv denied 18 NY3d 863 [2011]).
Finally, defendant's challenge to the propriety of Supreme Court's charge that thejury [*3]must "accept the law from [the c]ourt withoutquestion, without reservation and with strict obedience" is unpreserved and, in any event,without merit (see People v Weinberg, 83 NY2d 262, 268 [1994]; People vGoetz, 73 NY2d 751, 753 [1988], cert denied 489 US 1053 [1989]; People v Houck, 101 AD3d1239, 1240 [2012]; People v Tirado, 192 AD2d 755, 756 [1993], lvdenied 81 NY2d 1081 [1993]).
Stein, Garry, Egan Jr. and Clark, JJ., concur. Ordered that the judgment is affirmed,and matter remitted to the Supreme Court for further proceedings pursuant to CPL460.50 (5).
Footnote *:No challenge to the basisfor police entry was raised on appeal.