| People v Brooks |
| 2015 NY Slip Op 03196 [127 AD3d 1407] |
| April 16, 2015 |
| Appellate Division, Third Department |
[*1](April 16, 2015)
| The People of the State of New York,Respondent, v William A. Brooks Jr., Appellant. |
Lance N. Salisbury, Ithaca, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Damian M. Sonsire of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Chemung County(Hayden, J.), rendered February 15, 2011, upon a verdict convicting defendant of thecrimes of attempted robbery in the second degree, attempted criminal possession of acontrolled substance in the third degree and petit larceny.
Following a jury trial, defendant was convicted of attempted robbery in the seconddegree, attempted criminal possession of a controlled substance in the third degree andpetit larceny. He now appeals, arguing that the verdict was not supported by legallysufficient evidence and was against the weight of the evidence.[FN1] Finding neither argument persuasive,we affirm.
At trial, the victim testified that, on the afternoon of July 25, 2010, she went to aresidence in the City of Elmira, Chemung County, where she knew crack cocaine wasbeing sold. While there, defendant "fronted" her several bags of crack cocaine, which shethereafter smoked [*2]over the course of several hours,upon her assurances that she had money at her apartment to pay for the drugs. The victimexplained that, at some point in the evening, defendant and another began demandingpayment for the drugs and then forcibly removed her from the residence, dragged her offof the premises and pushed her into defendant's vehicle, all while repeatedly telling herthat they were going to her apartment to get the money. Upon arriving at the victim'sapartment and learning that she did not have the money, defendant threatened tophysically assault her and demanded that she call someone to bring her the money. Thevictim complied and contacted her paramour who, in turn, contacted the police.Defendant and the other individual then proceeded to ransack the entire apartment in asearch for money and items of value. According to the victim, the other individualbrandished a weapon at one point and both continued to threaten her throughout thattime. Police ultimately arrived at the scene and, following several controlled phone callsbetween the victim and her paramour, the victim exited the residence and was taken intocustody. Officers thereafter entered the apartment and arrested defendant, who wassituated in close proximity to what appeared to be a handgun. Upon a search ofdefendant's vehicle following his arrest, several items from the victim's residence werediscovered therein.
Viewed in the light most favorable to the People (see People v Gordon, 23 NY3d 643, 649 [2014]; People v Charles, 124 AD3d986, 987 [2015]), this evidence was legally sufficient to support defendant'sconvictions (see Penal Law §§ 110.00, 155.25, 160.10 [1];220.16 [1]; People v Djanie,31 AD3d 887, 887 [2006], lv denied 7 NY3d 866 [2006]; People vZabala, 290 AD2d 578, 578 [2002], lv denied 97 NY2d 735 [2002]).Defendant does not dispute that evidence on each of the elements of the crimes for whichhe was convicted was supplied through the trial testimony of the victim, but insteadmaintains that the victim's testimony was incredible as a matter of law.[FN2] At trial, the victimrecounted her criminal history and longstanding struggles with drug abuse, whichincluded several inpatient treatment programs and relapses of usage, and was admittedly"pretty high" from her "binge" and experiencing symptoms of withdrawal—suchas paranoia—while defendant was at her apartment. Furthermore, as defendantcontends, there were several inconsistencies and contradictions in the victim's testimony,and portions of her testimony were questionable. However, these issues were fullydeveloped at trial and highlighted to the jury, and the victim's testimony was notcontradicted by any compelling evidence offered by defendant so as to render itunworthy of belief or "establish a basis upon which to disturb the jury's resolution ofthese credibility issues" (Peoplev Mitchell, 57 AD3d 1308, 1309 [2008] [internal quotation marks, brackets andcitations omitted]; see People vBrabham, 126 AD3d 1040, 1041 [2015]; People v Wingo, 103 AD3d 1036, 1037 [2013], lvdenied 21 NY3d 1021 [2013]; People v Moyer, 75 AD3d 1004, 1006 [2010]). Further,after independently weighing the evidence and considering it in a neutral light, whileaccording [*3]deference to the jury's superior ability toevaluate credibility (see Peoplev Danielson, 9 NY3d 342, 349 [2007]; People v Bleakley, 69 NY2d 490,495 [1987]; People vRobinson, 117 AD3d 1099, 1101 [2014], lv denied 23 NY3d 1066[2014]), we cannot say that the verdict was contrary to the weight of the evidence.
Lahtinen, Garry and Lynch, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1:By making aparticularized trial motion to dismiss directed at the specific deficiencies now claimed onappeal, defendant preserved his legal sufficiency claim for our review (see People v Carncross, 14NY3d 319, 324-325 [2010]; People v Gray, 86 NY2d 10, 19 [1995]).
Footnote 2:To the extent thatdefendant also argues that, absent corroborating evidence, the victim's testimony wasinsufficient to prove that the substance he allegedly possessed was, in fact, cocaine, weneed only note that the existence of a controlled substance is not an element of the crimeof attempted criminal possession of a controlled substance in the third degree (seePenal Law §§ 110.00, 220.16 [1]; see also People v Alameen,264 AD2d 937, 938 [1999], lv denied 94 NY2d 819 [1999]; People vSessions, 181 AD2d 842, 843 [1992], lv denied 80 NY2d 837 [1992]; compare People v Martin, 81AD3d 1178, 1180 [2011], lv denied 17 NY3d 819 [2011]).