| People v Acevedo |
| 2014 NY Slip Op 04260 [118 AD3d 1103] |
| June 12, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vHector Acevedo, Appellant. |
Craig S. Leeds, Albany, for appellant.
P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Albany County (Breslin,J.), rendered March 4, 2011, upon a verdict convicting defendant of the crimes ofcriminal possession of a controlled substance in the third degree, assault in the seconddegree and resisting arrest.
Defendant was charged by indictment with one count each of criminal possession ofa controlled substance in the third degree, assault in the second degree, resisting arrestand unlawful possession of marihuana, stemming from allegations that, after heroin andmarihuana were found in the vehicle he owned and was traveling in as a passenger, hephysically assaulted the State Trooper who tried to place him under arrest and fled. Theunlawful possession of marihuana charge was dismissed by County Court at trial forlegally insufficient evidence. Defendant was convicted of the three remaining chargesand sentenced, as a second felony offender, to an aggregate prison term of 14 years,followed by five years of postrelease supervision. Defendant appeals, and we affirm.
Defendant properly preserved the challenge now raised on appeal relative to the legalsufficiency of the proof of the elements of the crimes by his motion for dismissal at theclose of the People's case addressing the claimed deficiencies in the evidence (see People v Battease, 74AD3d 1571, 1573 [2010], lv denied 15 NY3d 849 [2010]; People v Roberts, 63 AD3d1294, 1296 [2009]). However, upon review, and viewed in the light most favorableto the People, we [*2]are satisfied that "there is a validline of reasoning and permissible inferences from which a rational jury could have foundthe elements of the crime[s] proved beyond a reasonable doubt" (People v Danielson, 9 NY3d342, 349 [2007] [internal quotation marks and citations omitted]; see People v Souffrant, 93AD3d 885, 886 [2012], lv denied 19 NY3d 968 [2012]).
The testimony at trial established that, at approximately 10:12 p.m. on November 19,2009, State Troopers Jeffrey Devine and Eric Terraferma stopped a vehicle on Interstate90 (hereinafter I-90) westbound after observing that the vehicle had an inoperableheadlight. Approaching the car, Devine, who had training and experience in drugdetection, smelled an odor of marihuana coming from inside the vehicle. Defendant, thefront-seat passenger, volunteered that he was the owner of the vehicle. After discussinghis findings with his partner, Devine decided to search the vehicle. When the twoTroopers returned, defendant rolled down the front passenger-side window, andTerraferma detected an odor of marihuana. Based on the odor, Devine conducted apat-down search of the driver, and then returned him to the vehicle. Devine alsoconducted a pat-down search of defendant and the rear-seat passenger, but had themremain outside of the vehicle.
As Devine leaned into the vehicle to notify the driver that he was going to conduct asearch, he observed a small bag on the center console containing what he believed to bemarihuana, and a small black bag protruding out of the center console in thefront-passenger seat which, upon inspection, he determined contained heroin.Subsequent examination of the black bag established that it contained 299 glassineenvelopes held together by rubber bands, a sample of which were tested and confirmed tocontain heroin and cocaine. At trial a State Police investigator, who had training andexperience in identifying whether narcotics are "packaged with the intent to sell,"testified that heroin is typically packaged for sale in glassine envelopes that are heldtogether by rubber bands and that, in his experience, the most a heroin user can consumein one day is 20 glassine envelopes.
After initially seeing the heroin, Devine attempted to place defendant under arrest.Defendant pushed Devine away and took off on foot. A lengthy pursuit, spanning acrossI-90, and physical altercations between the two ensued, in the course of which defendantstruck Devine numerous times in the head, body and face. After defendant was ultimatelysubdued, Devine was transported to the hospital and treated for injuries to his left knee,lower back and abrasions to his head and face. Devine testified that the combinedinjuries caused him "substantial pain" and prevented him from working for twoweeks.
Based on the foregoing, we conclude that the evidence was legally sufficient toestablish that defendant committed the crimes of criminal possession of a controlledsubstance in the third degree (see People v Souffrant, 93 AD3d at 887; People v Garcia, 30 AD3d833, 835 [2006]), assault in the second degree (see People v Somerville, 72 AD3d 1285, 1287 [2010]; compare People v Winchester,14 AD3d 939, 941 [2005], lv denied 5 NY3d 796 [2005]) and resistingarrest (see People v Lepard,83 AD3d 1214, 1216 [2011], lv denied 18 NY3d 925 [2012]; People vSomerville, 72 AD3d at 1287).
We do not find merit in defendant's assertion that County Court erred in denying hisrequest to dismiss the indictment pursuant to CPL 210.35 (5) on the basis that, amongother things, certain aspects of Devine's suppression testimony differed from thetestimony that he gave before the grand jury. While Devine's grand jury testimony as towhich side of the vehicle he was standing on when he observed the contraband wasinconsistent with his suppression [*3]testimony, this doesnot indicate that " 'prosecutorial wrongdoing, fraudulent conduct or errorspotentially prejudice[d] the ultimate decision reached by the [g]rand [j]ury' such thatdismissal was required" (Peoplev Lumnah, 81 AD3d 1175, 1177 [2011], lv denied 16 NY3d 897 [2011],quoting People v Huston, 88 NY2d 400, 409 [1996]). Notably, without regard towhere Devine was standing when he observed the contraband, he had probable cause tosearch the vehicle based on his previous detection of the odor of marihuana emanatingfrom the vehicle (see People vHorge, 80 AD3d 1074, 1074-1075 [2011]).[FN*]Defendant's related contention that theinitial accusatory instruments (see CPL 100.05, 100.10 [1], [4], [5]; 100.15) werefacially deficient is rendered academic, as they were superseded by a valid grand juryindictment (see People vWatson, 105 AD3d 1264, 1265 [2013]; People ex rel. Van Steenburg v Wasser, 69 AD3d 1135,1136 [2010], lv dismissed and denied 14 NY3d 883 [2010]).
Defendant also challenges County Court's denial of his motion to suppress thecontraband found in the vehicle, arguing that Devine's testimony should have been foundincredible as a matter of law. County Court's resolution of the inconsistencies in Devine'stestimony required credibility determinations, to which we accord deference (seePeople v Prochilo, 41 NY2d 759, 761 [1977]; People v Portelli, 116 AD3d 1163, 1164 [2014]). Uponreview, we find no reason to disturb the determination. Devine and Terraferma hadauthority to stop the vehicle being driven by Smith based upon their observation of aninoperable headlight (see Vehicle and Traffic Law § 375 [2] [a] [1];People v Merritt, 96 AD3d1169, 1170 [2012], lv denied 19 NY3d 1027 [2012]; People v Viele, 90 AD3d1238, 1239 [2011], lv denied 19 NY3d 868 [2012]). Detecting an odor ofmarihuana emanating from the vehicle following the stop, the Troopers had probablecause to search the vehicle (see People v Horge, 80 AD3d at 1074-1075; People v Gaines, 57 AD3d1120, 1121 [2008]). Contrary to defendant's contention, Devine's testimony was notincredible as a matter of law so as to warrant disturbing County Court's determination,despite the inconsistencies (seePeople v Ponzo, 111 AD3d 1347, 1348 [2013]; People v Murray, 58AD3d 1073, 1075 [2009], lv denied 12 NY3d 786 [2009]; People vDurgey, 186 AD2d 899, 901 [1992], lv denied 81 NY2d 788 [1993]).
We find no error in County Court's refusal to submit the charge of criminalpossession of a controlled substance in the seventh degree as a lesser included offense ofcriminal possession of a controlled substance in the third degree. Although it isundisputed that defendant could not commit this crime in the third degree withoutconcomitantly committing it in the seventh degree, we agree with County Court that,even viewing the evidence in the light most favorable to defendant (see People vShuman, 37 NY2d 302, 304 [1975]), no reasonable view of the evidence supportsthe conclusion that defendant committed the lesser, but not the greater, offense (see People v Fairley, 63 AD3d1288, 1289-1290 [2009], lv denied 13 NY3d 743 [2009]; People v Berry, 5 AD3d866, 867 [2004], lv denied 3 NY3d 637 [2004]; People v Bond, 239AD2d 785, 786 [1997], lv denied 90 NY2d 891 [1997]). Similarly, as todefendant's request to submit the charge of obstructing governmental administration inthe second degree as a lesser included offense of assault in the second degree, the Peopleconcede that defendant could not commit the greater without concomitantly committingthe lesser crime (see People vNisselbeck, 85 AD3d 1206, 1208 [2011]). As County Court properly concluded,however, there is no reasonable view [*4]of the evidenceto support a finding that defendant committed obstructing governmental administrationin the second degree but not assault in the second degree (compare People vNisselbeck, 85 AD3d at 1208-1209; People v Sullivan, 284 AD2d 917,918-919 [2001], lv denied 96 NY2d 942 [2001]).
Next, defendant asserts that County Court erred in denying his request to provide anexpanded jury charge on intent to sell that he had drafted. County Court used thestandard jury charge regarding criminal possession of a controlled substance in the thirddegree set forth within the Criminal Jury Instructions, which included a definition ofintent (see CJI2d[NY] Penal Law § 220.16 [1]), and the court'scharge sufficiently set forth the governing law. We thus conclude that County Court didnot err in declining to use the expanded charge offered by defendant (see People vDory, 59 NY2d 121, 129 [1983]; People v Gregory, 78 AD3d 1246, 1247-1248 [2010],lv denied 16 NY3d 831 [2011]). Nor did the court err in its response to a jurynote. During jury deliberations, the court received a note from the jury requesting "justthe elements" of the first count. Upon County Court's inquiry, the jury indicated that itwanted the elements read "without all the definitions." Defendant insisted that the courtprovide the entire charge regarding the count, but the court read only the elements of thecrime to the jury. Upon review, we find that County Court acted within its discretion intailoring a meaningful and appropriate response to the jury's specific inquiry (seeCPL 310.30; People v Almodovar, 62 NY2d 126, 131-132 [1984]; People v Williams, 28 AD3d1005, 1010 [2006], lv denied 7 NY3d 819 [2006]).
As to defendant's contention that County Court erred in denying his motion to setaside the verdict (see CPL 330.30), this "motion may be granted only for issuesof law that 'would require a reversal or modification of the judgment as a matter of lawby an appellate court' " (People v Sudler, 75 AD3d 901, 904 [2010], lvdenied 15 NY3d 956 [2010], quoting CPL 330.30 [1]; see People v Hakim-Peters, 92AD3d 1030, 1031 [2012]). Defendant put forth five arguments in support of hismotion, four of which we have addressed above and have found do not require reversalor modification. We find that defendant's fifth argument, that the People engaged inprosecutorial misconduct when they denied his request to delay the presentment of thecharges to the grand jury, also does not require reversal or modification (see generallyPeople v Huston, 88 NY2d at 406; People v Lancaster, 69 NY2d 20, 25-26[1986], cert denied 480 US 922 [1987]). Accordingly, County Court properlydenied this motion.
Finally, we do not find County Court's imposition of consecutive sentences forcounts one and two harsh or excessive so as to warrant a reduction in the interest ofjustice (see CPL 470.15 [6] [b]). Where, as here, the actions underlying thecrimes are separate and distinct, consecutive sentences may be imposed (see People v McKnight, 16NY3d 43, 48 [2010]; People v Ramirez, 89 NY2d 444, 451 [1996]; People v McFarland, 106AD3d 1129, 1132 [2013], lv denied 22 NY3d 1140 [2014]). Although thesentence imposed was significantly longer than that offered during plea negotiations, thisdisparity alone does not establish that defendant was punished for going to trial in theabsence of any other record support (see People v Pena, 50 NY2d 400, 411-412[1980], cert denied 449 US 1087 [1981]; People v Matthews, 101 AD3d 1363, 1366 [2012], lvdenied 20 NY3d 1101 [2013]). In light of the circumstances of this case anddefendant's lengthy criminal history, we do not find that County Court abused itsdiscretion or that extraordinary circumstances exist that would warrant modification (see People v Shoga, 89 AD3d1225, 1232 [2011], lv denied 18 NY3d 886 [2012]; People v Bailey, 80 AD3d999, 1002 [2011], lv denied 18 NY3d 856 [2011]).
Defendant's remaining contentions, to the extent not specifically addressed, havebeen [*5]examined and found to be lacking in merit.
Peters, P.J., Lahtinen and Rose, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:We reject defendant'sfurther assertion that the grand jury was impaired because Devine was "unable to say"whether the odor of marihuana was from burned or raw marihuana; Devine was notspecifically asked this question before the grand jury.