| People v Alberts |
| 2018 NY Slip Op 03393 [161 AD3d 1298] |
| May 10, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Robert J. Alberts, Appellant. |
Alexander W. Bloomstein, Hillsdale, for appellant.
Stephen D. Ferri, Special Prosecutor, Binghamton, for respondent.
Clark, J. Appeals (1) from a judgment of the County Court of Cortland County (Campbell,J.), rendered July 30, 2015, upon a verdict convicting defendant of the crimes of criminalpossession of a controlled substance in the second degree and unlawful manufacture ofmethamphetamine in the third degree, and (2) from a judgment of said court, rendered December3, 2015, which resentenced defendant.
On an evening in June 2014, David Tobias of the Cortland County Sheriff's Departmentdrove to the home of defendant's parents to investigate a tip that methamphetamine was beingmanufactured at that address. During the course of his investigation, Tobias made variousobservations that led him to believe that defendant and his two codefendants, Terry Maricle andKristina Yerian, were manufacturing methamphetamine in a detached garage not far from theresidence. Based on his belief that there was an active methamphetamine lab inside, Tobias twiceentered the garage without a warrant, but he did not seize any evidence. The police subsequentlyobtained a warrant to search the garage and the residence and, upon execution of that warrant,seized various items of equipment, precursors, chemical reagents and solvents used in themanufacture of methamphetamine. Consequently, defendant was charged by indictment withcriminal possession of a controlled substance in the second degree and unlawful manufacture ofmethamphetamine in the third degree. County Court denied defendant's subsequent motion tosuppress, among other things, the items seized during the search. Defendant was thereafter jointlytried by a jury with his codefendants and ultimately convicted as [*2]charged.[FN1] County Court sentenced defendant to six yearsin prison and five years of postrelease supervision on the criminal possession of a controlledsubstance conviction and 2
We affirm. Initially, we are unpersuaded by defendant's contention that his convictions areagainst the weight of the evidence. In a weight of the evidence review, we first assess whether,based on all of the credible evidence, a different verdict would have been unreasonable; where adifferent result would not have been unreasonable, we then " 'weigh the relativeprobative force of conflicting testimony and the relative strength of conflicting inferences thatmay be drawn from the testimony' " to determine if the verdict is supported by the weightof the evidence (People v Romero, 7NY3d 633, 643 [2006], quoting People v Bleakley, 69 NY2d 490, 495 [1987]; accord People v Byrd, 152 AD3d984, 986 [2017]). As relevant here, "[a] person is guilty of criminal possession of acontrolled substance in the second degree when he or she knowingly and unlawfully possesses. . . one or more preparations, compounds, mixtures or substances containingmethamphetamine, its salts, isomers or salts of isomers and said preparations, compounds,mixtures or substances are of an aggregate weight of two ounces or more" (Penal Law§ 220.18 [2]). As relevant here, "[a] person is guilty of unlawful manufacture ofmethamphetamine in the third degree when he or she possesses at the same time and location,with intent to use, or knowing that another intends to use each such product to unlawfullymanufacture, prepare or produce methamphetamine[,] . . . [t]wo or more items oflaboratory equipment and two or more precursors, chemical reagents or solvents in anycombination" (Penal Law § 220.73 [1]).
The trial evidence established that, at some point, defendant was placed inside of Tobias'patrol vehicle, that defendant had a glass of water within the vehicle and that Tobias laterdiscovered white pills—which he recognized as pseudoephedrine, a precursor tomethamphetamine—at the bottom of the water glass and on the floor of his vehicle. Theevidence also established that, upon execution of the search warrant, the policeseized—from the same area within the garage—precursors (specifically, blisterpacks for pseudoephedrine), reagents (including drain opener, ammonium nitrate and muriaticacid), solvents (such as Coleman fuel, brake fluid and starting fluid) and equipment (namely, apill grinder, a white pan, coffee filters, plastic tubing, a mask and glass jars) commonly used inthe manufacture of methamphetamine. A state trooper involved in the search explained that theseized items, which [*3]could all be legally purchased, weretypically used in the "one-pot" method of methamphetamine manufacture and that the searchteam had recovered two separate one-pots from the garage. The testimony demonstrated thatseveral samples of liquid—weighing a total of roughly three ounces—were takenfrom the one-pots and that, although there were gaps and inconsistencies in the chain of custody,those samples ultimately tested positive for methamphetamine.
Because defendant was not found to be in physical possession of any of the seized items, thePeople had to establish that defendant constructively possessed the items by showing that he"exercised 'dominion or control' over the property by a sufficient level of control over the area inwhich the contraband is found" (People v Manini, 79 NY2d 561, 573 [1992]; seePenal Law § 10.00 [8]; People v Carvajal, 6 NY3d 305, 327 [2005]). In that regard, theevidence established that the residence belonged to defendant's parents, and a voluntarystatement given by Yerian to the police suggested that defendant resided with his parents. Inaddition, Tobias testified that, on the night in question, he had two encounters with defendant,separated by a 10-minute period when he left the residence and called his supervisor. Tobiasstated that, on both occasions, it was defendant who emerged from the garage to meet him.Tobias also testified that, in response to his inquiries as to what he was doing inside the garage,defendant represented that he was having sex with a woman. Tobias further stated that defendantaccompanied him into the garage during his first warrantless entry and that defendant protestedhis second warrantless entry.
It would not have been unreasonable for the jury to have acquitted defendant of both charges,as it could have found that defendant did not have dominion or control over the seized items, allof which could be plausibly found in a garage, by having a sufficient level of control over thegarage (see People v Graham, 138AD3d 1242, 1243 [2016], lv denied 28 NY3d 930 [2016]). Additionally, withrespect to the criminal possession charge, the jury could have also found that, due to the gaps andinconsistencies in the chain of custody, it could not be reasonably assured of the identity of thesamples allegedly taken from the one-pots and, thus, that defendant possessed the requisiteamount of methamphetamine (seegenerally People v Beverly, 5 AD3d 862, 864 [2004], lv denied 2 NY3d 796[2004]; People v Howard, 305 AD2d 869, 870 [2003], lv denied 100 NY2d 583[2003]; People v Haggray, 173 AD2d 962, 964 [1991], lv denied 78 NY2d 966[1991]). However, viewing the foregoing evidence in a neutral light and deferring to the jury'scredibility determinations (see People vFord, 156 AD3d 1242, 1244 [2017]; People v Cochran, 140 AD3d 1198, 1200 [2016], lv denied28 NY3d 970 [2016]), we are satisfied that defendant's convictions are not against the weight ofthe evidence.
Next, contrary to defendant's assertions, Tobias' warrantless entries into the garage werejustified under the emergency exception to the warrant requirement. Under the FourthAmendment of the US Constitution and article I, § 12 of the NY Constitution,warrantless entries into an individual's home are presumptively unreasonable, subject to certaincarefully circumscribed exceptions (see United States v Karo, 468 US 705, 717 [1984];People v McBride, 14 NY3d440, 445 [2010], cert denied 562 US 931 [2010]; People v Molnar, 98 NY2d328, 331 [2002]; People v Knapp, 52 NY2d 689, 694 [1981]). Under the NYConstitution, the emergency exception to the warrant requirement permits "the police [to] make awarrantless entry into a protected area if three prerequisites are met: '(1) The police must havereasonable grounds to believe that there is an emergency at hand and an immediate need for theirassistance for the protection of life or property. (2) The search must not be primarily motivatedby intent to arrest and seize evidence. (3) There must be some reasonable basis, approximatingprobable cause, to associate the emergency with the area or place to be searched' " (People v Gibson, 117 AD3d 1317,1318 [2014], affd 24 NY3d 1125 [2015], quoting People v Mitchell, 39 NY2d173, 177-178 [1976], cert denied 426 US 953 [1976]; see People v Molnar, 98NY2d at 332). The [*4]Supreme Court of the United States haseliminated any consideration of subjective intent—i.e., the second prong of the New Yorktest—from the emergency exception under the Fourth Amendment (see Brigham City vStuart, 547 US 398, 404-405 [2006]), and the Court of Appeals has yet to address whetherthe second prong of the New York test remains viable in the wake of that Supreme Courtdetermination (see People v Doll, 21NY3d 665, 671 n [2013], cert denied 572 US &mdash, 134 S Ct 1552 [2014]; People v Dallas, 8 NY3d 890, 891[2007]). Nevertheless, because we find that the warrantless entries into the garage satisfied boththe federal and state standards, we need not address that question here (see People vGibson, 117 AD3d at 1318 n 1; People v Rodriguez, 77 AD3d 280, 284 [2010], lv denied15 NY3d 955 [2010]).
At the suppression hearing, Tobias testified that when he drove by the residence, he observeda light on in the garage and smoke emanating from a missing window pane on the garage doorand that, upon pulling into the driveway, he was immediately greeted by defendant, who emergedfrom the garage. According to Tobias, defendant appeared "very nervous" and acted in a mannerthat led him to believe that defendant did not want him near the garage. Tobias also stated that, ashe walked up the driveway, he smelled a strong "chemical odor" that he believed—basedon his experience—to be associated with an active methamphetamine lab. Tobias testifiedthat, after a brief encounter with defendant, he got back into his car, drove down the road andcalled his supervisor, who advised him to call for backup and return to the scene. According toTobias, no more than 10 minutes had passed between his departure from and return to theresidence.
Tobias testified that when he returned to the scene, he noticed that the broken window hadbeen boarded up, but that he nonetheless continued to observe smoke and smell the strong odor.He stated that he was again greeted by defendant and that, in response to his questions about theorigin of the smoke, defendant indicated that he and a woman had engaged in sexual conduct inthe garage and had been smoking. Upon defendant's request, a woman, who was later determinedto be Yerian, emerged from the garage. Tobias stated that he thereafter heard "shuffling" and"movement" inside the garage, prompting him to enter the garage with defendant to ensure thatno one remained inside. Tobias testified that he knew methamphetamine labs to be dangerousand that he entered the garage without a warrant because he "wanted to make sure for the safetyof those who were in there that they got out." According to Tobias, once inside, he observedMaricle and a plastic one-pot methamphetamine lab in plain view. Tobias stated that he escortedMaricle out of the garage and that, despite defendant's protests and insistence that he needed awarrant, he reentered the garage with a mask "to make sure [that] everybody was out of there."After concluding that no one else was in the garage, Tobias exited, without having seized anyevidence. While defendant challenged the credibility of Tobias on cross-examination and duringsummation, he did not present any witnesses of his own. Consequently, County Court fullycredited the testimony given by Tobias, and we accord great deference to that credibilitydetermination (see People v Prochilo, 41 NY2d 759, 761 [1977]; People v Nicholas, 118 AD3d1183, 1188 [2014], lv denied 24 NY3d 1122 [2015]; People v Musto, 106 AD3d 1380,1380 [2013], lv denied and denied reconsideration 21 NY3d 1007 [2013]).
Defendant argues that Tobias would not have left the scene after his initial encounter withdefendant if he was truly concerned with the safety risks posed by the suspected activemethamphetamine lab. Tobias testified that he remained in the area, immediately called hissupervisor for direction and left the residence for no more than 10 minutes. Under thecircumstances presented after Tobias' initial encounter with defendant, we are unconvinced thatTobias' brief departure from the scene negates his asserted reason for entering the garage (seegenerally People v Molnar, 98 NY2d at 334). In our view, Tobias' testimony established thathe had objective reasonable grounds—which included his observations of continuoussmoke, a [*5]strong odor that he associated with an activemethamphetamine lab, defendant's suspicious behavior and misrepresentations, as well as thenoises he heard from within the garage after Yerian emerged—for believing that there wasan active methamphetamine lab inside the garage that posed an immediate danger to anyoccupants (see People v Dillon, 44AD3d 1068, 1070 [2007]; People vThatcher, 9 AD3d 682, 684 [2004]; People v Stagnitto, 261 AD2d 890, 891[1999], lv denied 93 NY2d 1028 [1999]). Considering that the smoke was emanatingfrom a window inside the garage, which was boarded up in the time between his brief departurefrom and return to the residence, and that both defendant and Yerian had emerged from thegarage, Tobias also had a reasonable basis, approximating probable cause, to believe that anactive methamphetamine lab was being operated from within the garage (see People vDillon, 44 AD3d at 1070). Furthermore, Tobias' testimony established that his primaryreason for entering the garage was not to arrest defendant or to seize evidence. Indeed, Tobiastestified that, because he knew "[m]eth labs [to be] dangerous" and to pose a "risk of explosionsand fires," both of his entries into the garage were motivated by his concern for the safety ofanyone who may have remained inside (see id.). In view of the foregoing, we find thatTobias' warrantless entries into the garage were justified by the emergency doctrine (seePeople v Mitchell, 39 NY2d at 180; People v Gibson, 117 AD3d at 1321).
We also reject defendant's contention that the search warrant was not supported by probablecause. "[I]n order to establish probable cause for the issuance of a search warrant, the warrantapplication must demonstrate that there is 'sufficient information to support a reasonable beliefthat evidence of a crime may be found in a certain place' " (People v Pinkney, 90 AD3d 1313,1315 [2011], quoting People vChurch, 31 AD3d 892, 894 [2006], lv denied 7 NY3d 866 [2006]; see People v Pasco, 134 AD3d1257, 1258 [2015]). The warrant application was supported by, among other things, thesworn deposition of Tobias, who attested to the observations that he made at the residence duringhis investigation of an allegedly anonymous tip that methamphetamine was being manufacturedat defendant's family residence. While it was later revealed that Tobias knew the identity of theinformant and that the information was the product of hearsay, Tobias' independent, firsthandobservations at the scene—namely, the smoke emitting from the broken garage window,the odor associated with an active methamphetamine lab and defendant's suspicious demeanorand misrepresentations as to how many people were inside the garage, along with the fact that thebroken window had been boarded up during Tobias' brief absence—constituted sufficientinformation to support a reasonable belief that evidence of a crime may be found in the garageand the residence (see People vVanhoesen, 31 AD3d 805, 806 [2006]; People v Ashton, 169 AD2d 353,355-356 [1991], appeal dismissed 79 NY2d 897 [1992]; compare People vWirchansky, 41 NY2d 130, 132-135 [1976]). Moreover, Tobias' independent observations ofsmoke and a chemical odor were corroborated by the sworn deposition of a police officer whoarrived at the residence in response to Tobias' request for backup. Accordingly, we find that thesearch warrant was issued upon probable cause (see People v Pasco, 134 AD3d at 1258;People v Pinkney, 90 AD3d at 1316).
Defendant further argues that County Court abused its discretion in denying his request forsubstitution of assigned counsel without first conducting an inquiry. Generally, although anindigent criminal defendant does not have the right to the "appointment of successive lawyers at[his or her] option," he or she may be entitled to substitution of assigned counsel upon a showingof good cause (People v Sides, 75 NY2d 822, 824 [1990]; see People v Washington, 25 NY3d1091, 1095 [2015]; People vManley, 70 AD3d 1125, 1125 [2010]). Where a defendant makes a showing of goodcause, supported by "specific factual allegations of serious complaints about counsel," the trialcourt "must make at least a minimal inquiry, and discern meritorious complaints fromdisingenuous applications by inquiring as to the nature of the disagreement or its potential forresolution" (People v Porto, 16NY3d 93, 100 [2010] [internal quotation marks [*6]andcitations omitted]; see People v Sides, 75 NY2d at 825; People v Puccini, 145 AD3d 1107,1109 [2016], lv denied 29 NY3d 1035 [2017]).
Although the record includes a March 2015 letter from County Court to defendant in whichthe court denies defendant's request for substitution of assigned counsel, the record does notdisclose when defendant made such letter request or his reasons for doing so. Under thesecircumstances, we cannot evaluate whether defendant raised sufficiently serious complaintsabout his assigned counsel such that County Court was required to conduct a minimal inquiry.However, we note that defendant did not subsequently challenge County Court's denial of hisrequest and that, during a pretrial conference held on the eve of trial, defendant solely raisedissues with counsel's defense strategies—a complaint that does not establish good causefor substitution of assigned counsel (seePeople v Linares, 2 NY3d 507, 511 [2004]; People v Brown, 154 AD3d 1004, 1006 [2017], lv denied30 NY3d 1113 [2018]; People vBradford, 118 AD3d 1254, 1255 [2014], lv denied 24 NY3d 1082 [2014]).
Defendant's remaining arguments lack merit. With respect to his claim of ineffectiveassistance of counsel, a review of the record as a whole reveals that defense counsel provideddefendant with meaningful representation, as he made relevant pretrial motions, registered timelyevidentiary objections, ably cross-examined and impeached witnesses and gave appropriateopening and closing statements (seePeople v Rivers, 152 AD3d 1054, 1058 [2017], lv denied 30 NY3d 1063 [2017];People v Malloy, 152 AD3d968, 971 [2017], lv denied 30 NY3d 981 [2017]; People v Ramos, 133 AD3d 904, 909 [2015], lv denied 26NY3d 1149 [2016]). Finally, County Court properly weighed defendant's lack of criminal historyand substance abuse issues against the seriousness of the crimes, and we discern no extraordinarycircumstances or abuse of discretion warranting a reduction of the sentence in the interest ofjustice (see People v Leduc, 140AD3d 1305, 1308 [2016], lv denied 28 NY3d 932 [2016]; People v Reynoso, 11 AD3d 719,720 [2004]; People v Cruz, 244 AD2d 803, 804-805 [1997]).
To the extent that we have not specifically addressed any of defendant's arguments, they havebeen reviewed and found to be meritless.
McCarthy, J.P., Mulvey, Aarons and Rumsey, JJ., concur. Ordered that the judgments areaffirmed.
Footnote 1:Maricle and Yerian were alsoconvicted as charged. In particular, Maricle was convicted of criminal possession of a controlledsubstance in the second degree and unlawful manufacture of methamphetamine in the thirddegree, and Yerian was convicted of criminal possession of a controlled substance in the seconddegree. Based on legal sufficiency grounds, this Court reversed Maricle's convictions anddismissed the indictment against him (People v Maricle, 158 AD3d 984 [2018]).
Footnote 2:County Court initially imposedthree years of postrelease supervision on the criminal possession conviction, but corrected thatillegal sentence upon resentencing and imposed the required five-year period of postreleasesupervision (see Penal Law § 70.45 [2]). On appeal, defendant does notraise any arguments with respect to the judgment of resentencing.