| People v Blalark |
| 2015 NY Slip Op 02018 [126 AD3d 1124] |
| March 12, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vDaquan Blalark, Appellant. |
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi 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.), renderedJuly 17, 2012 in Albany County, upon a verdict convicting defendant of the crimes ofcriminal possession of a controlled substance in the third degree, criminal possession of acontrolled substance in the fourth degree and unlawful possession of marihuana.
While driving his vehicle in the City of Albany, defendant was stopped by three lawenforcement officers. Following the officers' recovery of a bag of crack cocaine in thepolice vehicle where defendant was held during the stop, defendant was transported tothe police station where a strip search revealed a quantity of marihuana on his person.Defendant was charged with criminal possession of a controlled substance in the thirdand fourth degrees and unlawful possession of marihuana. After a jury trial, he wasconvicted as charged and sentenced as a second felony offender to an aggregate prisonterm of seven years, followed by three years of postrelease supervision. He appeals, andwe affirm.
Defendant contends that the verdict is not supported by legally sufficient evidenceand is against the weight of the evidence. As an initial matter, defendant's generalobjections at the close of proof did not preserve his argument that the evidence is legallyinsufficient to establish that he possessed, with the intent to sell, the crack cocainerecovered from the police vehicle (see People v Hawkins, 11 NY3d 484, 492 [2008]; People v Valverde, 122 AD3d1074, 1075 [2014]). However, because a different verdict would not have beenunreasonable, we evaluate whether [*2]each element ofthe crimes charged was proven beyond a reasonable doubt in assessing defendant's claimthat the verdict is against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348 [2007]; People v Rankin, 117 AD3d1231, 1232 [2014], lv denied 24 NY3d 1087 [2014]). As relevant here, aconviction for criminal possession of a controlled substance in the third degree requiresproof that the defendant "knowingly and unlawfully possesse[d] . . . anarcotic drug with intent to sell it" (Penal Law § 220.16 [1]; see People v Kramer, 118AD3d 1040, 1043 [2014]). Criminal possession of a controlled substance in thefourth degree requires proof that the defendant "knowingly and unlawfully possesse[d]. . . a narcotic drug . . . [with] an aggregate weight ofone-eighth ounce or more" (Penal Law § 220.09 [1]; see People v Reid, 12 AD3d719, 720 [2004], lv denied 4 NY3d 767 [2005]).
The evidence at trial established that Josiah Jones, a sergeant with the Albany PoliceDepartment, together with John Regan and Kevin Meehan, both detectives with thedepartment, were driving in a police vehicle when Jones recognized defendant drivingpast them. Acting on the belief that defendant's driver's license was suspended, theofficers pulled defendant over. Defendant did not stop his vehicle immediately, butstarted to pull over and then pulled out into the road several times before ultimatelystopping. Upon approaching the vehicle, all three law enforcement officers smelledmarihuana, prompting them to remove defendant from his car and conduct two cursorypat-down searches. Defendant was then placed in the rear seat of the police vehicle.During the approximately 15 minutes that defendant was held there, Jones observed him"moving around a lot" and "bobbing his shoulders up and down with his handcuffedhands by his back." Upon removing defendant from the police vehicle, Regan andMeehan recovered a plastic bag containing three individual plastic bags—whichtogether held over an eighth of an ounce of crack cocaine—that was "tucked up""underneath the section of the seat where [defendant's] back would have been." Meehantestified that, although the air was chilly on the October evening of the incident and thebag was not located near any heat source within the police vehicle, it was noticeablywarm to the touch.
While defendant contends that the cocaine could have been stashed in the policevehicle by a prior suspect transported just before his arrest, the testimony of Jones andRegan established that the prior suspect was searched before being placed in the backseat of the police vehicle, rode in a different part of the back seat from defendant and wasflanked by Meehan and Regan. Furthermore, Meehan testified that he conducted athorough inspection of the back seat of the police vehicle just prior to defendant's arrest,which included lifting up the back seat and looking underneath it with a flashlight.Evaluating the evidence in a neutral light and according deference to the jury's credibilitydeterminations (see People vDanielson, 9 NY3d 342, 348-349 [2007]; People v Bleakley, 69 NY2d490, 495 [1987]), we find that defendant's convictions for criminal possession of acontrolled substance were not against the weight of the evidence.[FN*]
Similarly without merit is defendant's contention that Supreme Court erred indenying his motion to suppress, based on the alleged lack of reasonable suspicion for thestop. Jones testified at the suppression hearing that he was aware that defendant had asuspended license and had mentioned it to defendant on more than one prior occasion, togive defendant an opportunity [*3]to correct the problem.He further detailed that, approximately one week prior to defendant's arrest, Jones hadrun defendant's license and confirmed that it was still suspended. Although Jones did nothave a computer in the vehicle he was driving to confirm the status of defendant's licenseprior to the stop, he nonetheless possessed reasonable suspicion that defendant wasdriving with a suspended license (see People v Kulk, 103 AD3d 1038, 1038 [2013], lvdenied 22 NY3d 956 [2013]; see also People v Haynes, 35 AD3d 1212, 1212 [2006],lv denied 8 NY3d 946 [2007]; People v Gales, 187 AD2d 606, 606[1992], lv denied 81 NY2d 788 [1993]).
Defendant's contention that Supreme Court abused its discretion in denying hismotion to set aside the verdict based on juror misconduct, without a hearing, is similarlyunavailing. In support of the motion, defense counsel submitted a sworn affirmation withattached printouts of electronic communications from a juror who alleged that racialcomments were made during deliberations. However, such proof was insufficient towarrant a hearing (see People vDavis, 83 AD3d 1210, 1213 [2011], lv denied 17 NY3d 794 [2011]; People v Johnson, 54 AD3d636, 636 [2008], lvs denied 11 NY3d 898 [2008], 12 NY3d 759 [2009]), asit relied on hearsay from unsworn statements by the alleged juror, who ultimately refusedto swear to or further discuss his allegations (see People v De Lucia, 15 NY2d294, 296 [1965], cert denied 382 US 821 [1965]; People v Camacho, 293AD2d 876, 876 [2002], lv denied 98 NY2d 729 [2002]). Finally, we find noabuse of discretion or extraordinary circumstances warranting a reduction in defendant'ssentence (see People vBrock, 107 AD3d 1025, 1029 [2013], lv denied 21 NY3d 1072 [2013];People v James, 90 AD3d1249, 1251 [2011], lv denied 18 NY3d 958 [2012]).
Rose, Egan Jr. and Clark, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:To the extent thatdefendant argues that the People "failed to meet their burden of proof . . .regarding each and every [c]ount charged," we further find that his conviction forunlawful possession of marihuana is likewise supported by the weight of the evidence inlight of his concession that police found marihuana on his person during a strip search.