| People v Crooks |
| 2015 NY Slip Op 04881 [129 AD3d 1207] |
| June 11, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vDayshawn Crooks, Appellant. |
Matthew C. Hug, Troy, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Albany County (Ceresia,J.), rendered August 15, 2013, upon a verdict convicting defendant of the crime ofcriminal possession of a controlled substance in the third degree (two counts).
In January 2013, defendant was charged with two counts each of criminal possessionof a controlled substance in the third degree and criminally using drug paraphernalia inthe second degree after police officers executing a search warrant at his apartment in theCity of Albany discovered, among other things, a quantity of crack cocaine. After a jurytrial, defendant was found guilty of both counts of criminal possession of a controlledsubstance in the third degree. County Court thereafter sentenced defendant—as asecond felony offender—to an aggregate prison term of eight years followed bythree years of postrelease supervision. Defendant now appeals, and we affirm.
Initially, we agree with County Court that a Darden hearing was notnecessary inasmuch as probable cause for the search warrant was established, in part, bythe independent observations of the police (see People v Farrow, 98 NY2d 629,630-631 [2002]; People v Darden, 34 NY2d 177, 181-182 [1974]; People v Sudler, 75 AD3d901, 903-904 [2010], lv denied 15 NY3d 956 [2010]). The search warrant atissue stemmed from two controlled purchases of crack cocaine, [*2]orchestrated by police and involving the use of aconfidential informant (hereinafter the CI).[FN*] In his search warrant application, andduring his in-court examination at a Mapp hearing, Detective James Wood of theCity of Albany Police Department explained that both buys had been electronicallymonitored via a live audio transmitter worn by the CI during the CI's interactions withdefendant in and around the Albany apartment. At certain points during thesetransactions, Wood and/or another police officer were also able to visually observe theCI interacting with defendant. Moreover, the CI was fully searched and found to bewithout contraband before entering the apartment or interacting with defendant, whileadditional searches upon the CI's exit revealed crack cocaine. Thus, we cannot agree withdefendant's contention that it was error for County Court to deny his request for aDarden hearing, as the search warrant that led to the instant charges wassupported by probable cause independent of any information directly provided by the CIalone (see People v Farrow, 98 NY2d at 631; People v Anderson, 104 AD3d 968, 970-971 [2013], lvdenied 21 NY3d 1013 [2013]).
Nor are we persuaded by defendant's contention that the verdict is against the weightof the evidence. "Such review entails weighing the relative probative force of conflictingtestimony and the relative strength of conflicting inferences that may be drawn from thetestimony while viewing the evidence in a neutral light and giving deference to the jury'scredibility assessments" (Peoplev Gibson, 121 AD3d 1416, 1418 [2014], lv denied 24 NY3d 1119[2015] [internal quotation marks and citations omitted]; see People v Danielson, 9NY3d 342, 348-349 [2007]; People v Bleakley, 69 NY2d 490, 495 [1987]).Inasmuch as a different verdict would not have been unreasonable, we evaluate whethereach element of the crimes charged was proven beyond a reasonable doubt (seePeople v Danielson, 9 NY3d at 348-349; People v Bleakley, 69 NY2d at494-495). As is relevant here, Penal Law § 220.16 prohibits knowinglypossessing either "a narcotic drug with intent to sell it" (Penal Law § 220.16[1]) or a mixture "containing a narcotic drug" that weighs "one-half ounce or more"(Penal Law § 220.16 [12]). Constructive possession of the drugs at issuemay be established through circumstantial proof (see People v Glover, 23 AD3d 688, 689 [2005], lvdenied 6 NY3d 776 [2006]) and "any conflict in the evidence regarding [a]defendant's dominion and control over the [crack] cocaine in question . . .create[s] issues of witness credibility, and the jury's determination in that regard must beaccorded great deference" (People v McCoy, 302 AD2d 797, 797-798 [2003],lv denied 100 NY2d 540 [2003]). With respect to establishing a defendant'sintent to sell drugs, the jury is allowed to infer, based on the amount of drugs at issue,that the defendant possessed them for the purpose of financial gain, rather than personalconsumption (see generallyPeople v Salaam, 46 AD3d 1130, 1131 [2007], lv denied 10 NY3d 816[2008]; People v Wright, 283 AD2d 712, 713-714 [2001], lv denied 96NY2d 926 [2001]).
During the trial, Gregory Mulligan, also a police officer with the City of AlbanyPolice Department, testified that, as several of his colleagues entered defendant'sapartment through the front door, he and two detectives—Wood and ScottGavigan—were observing the rear of defendant's building. As they watched,defendant was observed throwing a bag—which was later determined to containone piece of crack cocaine weighing 69 grams, which is nearly 2
In support of his contention that the People did not meet their burden of proving the[*3]element of possession, defendant points to minorinconsistencies in the trial testimony of the police officers. Although it is true that thetestimony of Mulligan and Wood as to their recollections of the details of this eventvaried at times—for example, with respect to how far away from the building theywere standing or whether defendant's window was already open before the bag wasthrown—we note that both officers consistently testified to witnessing the bagcontaining the drugs being thrown from defendant's apartment window. Additionaltestimony revealed that defendant was the only person found inside that apartment at thetime. Evaluating the evidence in a neutral light and according deference to the jury'scredibility determinations, we find the jury's conclusion that defendant possessed thedrugs to be supported by the record. Further, despite the uncontradicted evidence that thecrack cocaine discovered was in one single piece rather than packaged into smalleramounts consistent with resale at the street level, the jury was permitted to infer, basedon the substantial weight of it, that defendant intended to sell it, rather than keep it for hisown use (see generally People v Salaam, 46 AD3d at 1131; People vWright, 283 AD2d at 713). Thus, we do not find defendant's convictions to beagainst the weight of the evidence.
Finally, with regard to defendant's claim that his sentence is harsh and excessive, aswe discern no abuse of County Court's discretion nor any extraordinary circumstances,we are not compelled to reduce the sentence (see People v Vargas, 72 AD3d 1114, 1120-1121 [2010],lv denied 15 NY3d 758 [2010]; People v Carey, 241 AD2d 748, 752[1997], lv denied 90 NY2d 1010 [1997]). Defendant's remaining arguments,including those contained in his pro se brief, have been examined and found to bewithout merit.
McCarthy, J.P., Egan Jr. and Devine, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant was notindicted on charges stemming from these transactions.