| People v Colon |
| 2019 NY Slip Op 08449 [177 AD3d 1086] |
| November 21, 2019 |
| Appellate Division, Third Department |
[*1](November 21, 2019)
| The People of the State of New York,Respondent, v David Colon, Appellant. |
Catherine A. Barber, Guilderland, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), forrespondent.
Clark, J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered April2, 2014 in Albany County, upon a verdict convicting defendant of the crimes of criminalpossession of a controlled substance in the second degree, criminal possession of acontrolled substance in the third degree and unlawful possession of marihuana.
In December 2012, defendant was in the front passenger seat of a vehicle operatedby his codefendant, Frank Maldonado, when that vehicle was stopped by State Police forfailure to signal a lane change. During the traffic stop, defendant voluntarily surrendereda quantity of marihuana and, following a search of the vehicle, more than four ounces ofcocaine were discovered. Defendant and Maldonado were thereafter jointly charged byindictment with criminal possession of a controlled substance in the second degree andcriminal possession of a controlled substance in the third degree, and defendant wasadditionally charged with unlawful possession of marihuana.
Prior to trial, defendant moved to be tried separately from Maldonado, and CountyCourt (Herrick, J.) reserved decision pending completion of all pretrial hearings.Thereafter, County Court conducted a combined Mapp/Dunaway/Huntleyhearing, and Supreme Court (Breslin, J.) conducted a Sandoval hearing. Thematter ultimately proceeded to a joint jury trial, without a decision on defendant's motionfor a separate trial having been memorialized in the record. Following that trial,defendant was found guilty as charged.[FN*] Supreme Court sentenced defendant to eight years in prison and five years ofpostrelease supervision on his conviction for criminal possession of a controlledsubstance in the second degree and five years in prison and one year of postreleasesupervision on his conviction for criminal possession of a controlled substance in thethird degree, with the sentences to run concurrently. Defendant was also sentenced to aconditional discharge on the conviction for unlawful possession of marihuana. Defendantappeals.
Initially, we find no merit to defendant's assertion that his convictions for criminalpossession of a controlled substance in the second degree and third degree are basedupon legally insufficient evidence and are against the weight of the evidence. Inreviewing a legal sufficiency claim, this Court must, viewing the evidence in the lightmost favorable to the People, evaluate "whether there is any valid line of reasoning andpermissible inferences which could lead a rational person to the conclusion[s] reached bythe jury on the basis of the evidence at trial and as a matter of law satisfy the proof andburden requirements for every element of the crime[s] charged" (People vBleakley, 69 NY2d 490, 495 [1987]; see People v Reed, 22 NY3d 530, 534 [2014]). In contrast,a weight of the evidence review requires us to first determine whether, based on all of thecredible evidence, a different verdict would have been unreasonable and, if not, to weighthe relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the evidence to determine if the verdict issupported by the weight of the evidence (see People v Danielson, 9 NY3d 342, 348 [2007];People v Bleakley, 69 NY2d at 495).
As relevant here, "[a] person is guilty of criminal possession of a controlledsubstance in the second degree when he or she knowingly and unlawfully possesses. . . one or more preparations, compounds, mixtures or substancescontaining a narcotic drug and said preparations, compounds, mixtures or substances areof an aggregate weight of four ounces or more" (Penal Law § 220.18 [1])."A person is guilty of criminal possession of a controlled substance in the third degreewhen he [or she] knowingly and unlawfully possesses . . . a narcotic drugwith intent to sell it" (Penal Law § 220.16 [1]). Where, as here, a defendantis not found in physical possession of the controlled substance, constructive possessioncan be established upon a showing that he or she "exercised 'dominion or control' overthe property by a sufficient level of control over the area in which the contraband isfound" (People v Manini, 79 NY2d 561, 573 [1992]; see Penal Law§ 10.00 [8]; Peoplev Vargas, 72 AD3d 1114, 1116 [2010], lv denied 15 NY3d 758 [2010]).Further, under the automobile presumption, "[t]he presence of a controlled substance inan automobile, other than a public omnibus, is presumptive evidence of knowingpossession thereof by each and every person in the automobile at the time such controlledsubstance was found" (Penal Law § 220.25 [1]).
The evidence established that roughly 5.6 ounces of cocaine was discovered inside aBugles chip bag that was secreted within a loose panel near the vehicle's shifter. Thestate troopers involved in the traffic stop testified that defendant displayed a series of"tells" associated with drug interdiction, including voluntarily relinquishing a quantity ofmarihuana, appearing nervous and looking toward the area where the drugs weresecreted. They also consistently testified that defendant's shoulders slumped when he sawthat the chip bag had been discovered. The trooper who approached the passenger side ofthe vehicle, where defendant was seated, stated that he had observed defendant bent overand reaching around the carpet of the vehicle. Additionally, the testimony demonstratedthat defendant claimed at the start of the traffic stop that his stomach hurt and that he wason the way to a hospital, but that he repeatedly refused medical attention and did not laterdisplay any outward signs of discomfort. Finally, a detective with the City of AlbanyPolice Department testified that, based upon his training and experience in investigatingdrug trafficking, the quantity of cocaine seized and the "chunkiness" of thecocaine—such that it appeared to have been broken off a brick of cocaine and notyet "milled" or grinded down for street sale—were indicative of "possess[ion] fordistribution purposes." Viewed in the light most favorable to the People, the foregoingevidence was legally sufficient to support defendant's convictions for criminal possessionof a controlled substance in the second and third degrees (see People v Pearson, 69 AD3d1226, 1228 [2010], lv denied 15 NY3d 755 [2010]; compare People v Burns, 17AD3d 709, 710-711 [2005]). Although a different verdict would not have beenunreasonable, viewing the evidence in a neutral light and deferring to the jury'scredibility determinations, we further find that such convictions are not against theweight of the evidence (seePeople v Dunbar, 129 AD3d 419, 419-420 [2015], lv denied 26 NY3d1008 [2015]; People v Pearson, 69 AD3d at 1228; People v Carter, 60 AD3d1103, 1107 [2009], lv denied 12 NY3d 924 [2009]).
However, we agree with defendant that his motion for a separate trial should havebeen granted (see CPL 200.40 [1]). "[S]everance is compelled where the core ofeach defense is in irreconcilable conflict with the other and where there is a significantdanger, as both defenses are portrayed to the trial court, that the conflict alone would leadthe jury to infer [the] defendant's guilt" (People v Mahboubian, 74 NY2d 174,184 [1989]; accord People v Cardwell, 78 NY2d 996, 997-998 [1991]). Throughcounsel and by testifying on his own behalf, Maldonado denied knowledge of thecocaine's existence in his car and instead pointed the finger at defendant. Specifically, hetestified that defendant had brought the Bugles chip bag into the car, that he did notknow the contents of that bag, that he would not have allowed the bag in his car if he didand that defendant had his hands in the area where the bag was later discovered when thetraffic stop was initiated. In contrast, defendant argued—through counsel andwithout testifying—that he lacked knowledge of the cocaine's presence in the carand that the cocaine must have belonged to Maldonado, given that it was found inMaldonado's car and that he had a criminal history involving drug possession anddistribution—a subject brought out during cross-examination of Maldonado. Byseeking to implicate each other, defendant's and Maldonado's defenses were clearlyantagonistic, mutually exclusive and irreconcilable, and created "a significant possibilitythat the jury unjustifiably concluded by virtue of the conflict itself that both defenseswere incredible and gave undue weight to the [People's] evidence" (People vMahboubian, 74 NY2d at 186; see People v McGuire, 148 AD3d 1578, 1579 [2017]; People v Kyser, 26 AD3d839, 840 [2006]). Accordingly, as it was error to proceed to a joint trial, thejudgment of conviction must be reversed and the matter remitted. Defendant's remainingcontention is rendered academic by our determination.
Egan Jr., J.P., Mulvey and Devine, JJ., concur. Ordered that the judgment is reversed,on the law, and matter remitted to the Supreme Court for further proceedings notinconsistent with this Court's decision.
Footnote *:Maldonado wassimilarly convicted as charged. Based upon the arguments raised on appeal, this Courtaffirmed the judgment of conviction (People v Maldonado, 165 AD3d 1486 [2018]).