| People v Bombard |
| 2020 NY Slip Op 06174 [187 AD3d 1417] |
| October 29, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Marvin Bombard, Appellant. |
Brian M. Quinn, Albany, for appellant.
Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), forrespondent.
Colangelo, J. Appeal from a judgment of the County Court of Franklin County (Richards, J.),rendered September 22, 2017, upon a verdict convicting defendant of the crime of criminalpossession of a controlled substance in the third degree (two counts).
In July 2017, defendant was charged by indictment with two counts of criminal possession ofa controlled substance in the third degree based upon allegations that, in April 2016, heknowingly and unlawfully possessed heroin and cocaine with the intent to sell those narcotics(see Penal Law § 220.16 [1]). The charges stemmed from informationprovided by a confidential informant (hereinafter the CI) to law enforcement officers that led tothe apprehension of defendant and two other individuals, Breonna Gaddy and Terrick Griffin(hereinafter collectively referred to as the codefendants), while the three were inside the CI'sapartment and where, during the execution of a search warrant, the police found, among otherthings, scales, baggies, ties and various packages of heroin and cocaine. Following a jury trialwith Griffin, defendant was convicted as charged and thereafter sentenced, as a second felonydrug offender previously convicted of a violent felony, to two concurrent prison terms of sevenyears, to be followed by three years of postrelease supervision. Defendant appeals.
Initially, defendant contends that one of the two counts in the indictment should have beendismissed as multiplicitous. This argument is unpreserved as it was not specifically raised in apretrial motion to dismiss (see People vValcarcel, 160 AD3d 1034, 1037 [2018], lv denied 31 NY3d 1088 [2018]; People v Crippen, 156 AD3d 946,952 [2017]).
Defendant next contends that his convictions were not supported by legally sufficientevidence and were against the weight of the evidence. Inasmuch as his motion for a trial order ofdismissal was not directed at the specific arguments that he raises on appeal, defendant's legalsufficiency claim is unpreserved (seePeople v Meadows, 183 AD3d 1016, 1016-1017 [2020], lv denied 35 NY3d1047 [2020]; People v Baber, 182AD3d 794, 795 [2020], lv denied 35 NY3d 1064 [2020]). Nevertheless, in reviewingdefendant's challenge to the weight of the evidence, "we necessarily determine whether all of theelements of the charged crime[s] were proven beyond a reasonable doubt" (People v Rudge, 185 AD3d 1214,1214 [2020] [internal quotation marks and citations omitted], lv denied 35 NY3d 1070[2020]; see People v Brinkley, 174AD3d 1159, 1160 [2019], lv denied 34 NY3d 979 [2019]). In conducting a weight ofthe evidence review, "we must view the evidence in a neutral light and determine first whether adifferent verdict would have been unreasonable and, if not, weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may be drawn fromthe testimony to determine if the verdict is supported by the weight of the evidence" (People v Kalabakas, 183 AD3d1133, 1141 [2020] [internal quotation marks and citations omitted], lv denied 35NY3d 1067 [2020]; see People vHernandez, 180 AD3d 1234, 1235 [2020], lv denied 35 NY3d 993 [2020]).
As relevant here, "[a] person is guilty of criminal possession of a controlled substance in thethird degree when he [or she] knowingly and unlawfully possesses . . . a narcoticdrug with intent to sell it" (Penal Law § 220.16 [1]). Additionally, there is astatutory presumption, known as the drug factory presumption (see People v Kims, 24 NY3d 422,432 [2014]), that "[t]he presence of a narcotic drug . . . in open view in a room,other than a public place, under circumstances evincing an intent to unlawfully mix, compound,package or otherwise prepare for sale such controlled substance is presumptive evidence ofknowing possession thereof by each and every person in close proximity to such controlledsubstance at the time such controlled substance was found" (Penal Law § 220.25[2]). The drug factory presumption, "like all statutory presumptions in [this state], is a permissivepresumption, meaning that it allows, but does not require, the trier of fact to accept the presumedfact, and does not shift to the defendant the burden of proof" (People v Galindo, 23 NY3d 719, 723 [2014] [internal quotationmarks, brackets and citations omitted]).[FN*] The trial testimony establishedthat, in April 2016, a CI, who was cooperating with the Saranac Lake Police Department,provided information to Leigh Wenske, a police officer, that defendant was planning to use theCI's apartment for the distribution of drugs, as he had previously done. Wenske learned thatdefendant would facilitate the transportation of the drugs to the CI's apartment. Based upon thisinformation, the police intended to arrest defendant and the codefendants at the CI's apartment.Defendant arrived at the CI's apartment with the codefendants, who were carrying backpacks.Once inside the bedroom, the codefendants removed, among other things, drugs, scales andbaggies from the backpacks, placed the drugs on a table and distributed drugs to defendant. Asinstructed, the CI alerted Wenske of the arrival of defendant and the codefendants, as well as thefact that drug activity was taking place and that defendant was planning to leave after he receivedhis share of the drugs. Shortly after defendant and the codefendants entered the apartment, lawenforcement officers arrested defendant and the codefendants and seized the narcotics and theequipment being used to prepare the drugs for distribution. The CI testified that all of the drugsthat were present at the time of the arrest were for distribution purposes and not for personaluse.
According to the testimony at trial, defendant, the codefendants and the CI were observedsitting on the bed with narcotics in loose packaging on an end table near the bed. The items onthe end table were described as drugs of "varying amounts, various packages and varioussubstances," including "individually wrapped bags of a brown powdery substance, one of which. . . field tested positive for heroin," a digital scale and sandwich-sized plastic bags.A police sergeant testified that, from his experience "the scale and packaging items are indicativeof the intent to sell" as "the scale is the method used to weigh out the amount [of drugs] that goesinto each individual bag prior to the sale" and the box of sandwich bags is "indicative of theintent to sell because of it's [sic] packaging." Although a different verdict would not have beenunreasonable, when we view the foregoing evidence in a neutral light and defer to the jury'scredibility determinations, we find that the jury's verdict is supported by the weight of thecredible evidence (see People v Kalabakas, 183 AD3d at 1142; People v Sloley, 179 AD3d 1308,1310 [2020], lv denied 35 NY3d 974 [2020]).
Defendant also raises a litany of alleged errors by defense counsel that he contends deprivedhim of the effective assistance of counsel. "To establish a claim of ineffective assistance ofcounsel, a defendant is required to demonstrate that he or she was not provided meaningfulrepresentation and that there is an absence of strategic or other legitimate explanations forcounsel's allegedly deficient conduct" (People v Santana, 179 AD3d 1299, 1302 [2020] [internal quotationmarks and citations omitted], lv denied 35 NY3d 973 [2020]; see People v Kelsey, 174 AD3d962, 965 [2019], lv denied 34 NY3d 982 [2019]; People v Sostre, 172 AD3d 1623, 1627 [2019], lv denied 34NY3d 938 [2019]). Defendant argues that counsel did not provide meaningful representation inthat he failed, among other things, to preserve defendant's legal sufficiency challenge and toobject to the jury charge regarding the drug factory presumption. Defendant, however, has notdemonstrated on this record the absence of strategic reasons for defense counsel's conduct(see People v Santana, 179 AD3d at 1302; People v Cowan, 177 AD3d 1173, 1178 [2019], lv denied34 NY3d 1127 [2020]) or that, had counsel made the motions or taken the actions that defendantnow points to, there was any likelihood of success (see People v Caban, 5 NY3d 143, 152 [2005]; People vKalabakas, 183 AD3d at 1144-1145; People v Watkins, 180 AD3d 1222, 1233-1234 [2020], lvdenied 35 NY3d 1030 [2020]). Viewing the record as a whole, defense counsel, among otherthings, engaged in voir dire during jury selection, presented cogent opening and closingarguments, engaged in thorough cross-examination of each witness and argued for a lenientsentence based on drug addiction that defendant claimed began at age nine, thereby providingdefendant with meaningful representation (see People v Caban, 5 NY3d at 152;People v Santana, 179 AD3d at 1302; People v McCoy, 169 AD3d 1260, 1265 [2019], lv denied33 NY3d 1033 [2019]).
Finally, we are unpersuaded by defendant's argument that the sentence imposed was harshand excessive because his alleged involvement in the drug transaction was minimal and a directresult of his drug addiction. "Sentencing generally rests within the discretion of the trial court,and a legally permissible sentence will not be disturbed absent an abuse of the sentencing court'sdiscretion or extraordinary circumstances" (People v Turner, 172 AD3d 1768, 1773 [2019] [internal quotationmarks and citations omitted], lv denied 34 NY3d 939 [2019]; see People vSantana, 179 AD3d at 1303). Defendant is a second felony drug offender with a prior violentfelony conviction and a lengthy criminal history. Accordingly, we find no abuse of discretion orextraordinary circumstances to warrant the reduction of the sentence, which was well within thestatutory guidelines, in the interest of justice (see People v Valentin, 173 AD3d 1436, 1441 [2019], lvdenied 34 NY3d 954 [2019]; Peoplev Miller, 160 AD3d 1040, 1044 [2018], lv denied 32 NY3d 939 [2018]). To theextent not specifically addressed, defendant's remaining claims have been reviewed and found tobe without merit.
Egan Jr., J.P., Mulvey, Aarons and Pritzker, JJ., concur. Ordered the judgment isaffirmed.
Footnote *:To the extent that defendantcontends that County Court erred in charging the jury with respect to the drug factorypresumption pursuant to Penal Law § 220.25 (2), he failed to preserve this issue forour review, and we decline defendant's request to exercise our interest of justice jurisdiction totake corrective action (see CPL 470.15 [6] [a]; People v Alverson, 79 AD3d 1787, 1787-1788 [2010]).