| People v Young |
| 2008 NY Slip Op 01459 [48 AD3d 901] |
| February 21, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Alvin A.Young, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Carpinello, J. Appeal from a judgment of the County Court of Broome County (Mathews, J.),rendered January 9, 2006, upon a verdict convicting defendant of the crimes of criminalpossession of a controlled substance in the first degree and criminal possession of a controlledsubstance in the third degree (two counts).
Following a jury trial, defendant was found guilty of criminal possession of a controlledsubstance in the third degree stemming from evidence that he possessed approximately 36 gramsof cocaine on October 26, 2004 inside a residence on French Court in the City of Binghamton,Broome County. He was also found guilty of criminal possession of a controlled substance in thefirst and third degrees stemming from evidence that he, along with his cousin, Richard Johnson,possessed approximately 613 grams of cocaine on November 12, 2004 inside another cityresidence on Frederick Street. Sentenced as a second felony offender to concurrent prison termsaggregating 12 years, defendant now appeals. We affirm.
Defendant argues that the People failed to present legally sufficient evidence to establish anyof the charged crimes. In particular, he claims that the People failed to present sufficient evidenceestablishing his dominion or control over the drugs discovered at the French Court residence andalso failed to present sufficient evidence to corroborate the testimony of Johnson, an accomplice.We are unpersuaded.[*2]
We turn first to the evidence pertaining to the drugsdiscovered at the French Court residence. According to a City of Binghamton police officerassigned to the warrant office, he and a fellow officer went to the subject residence on October26, 2004 in search of a particular person who had two outstanding warrants against him. Aperson who lived in the home permitted the officers to search inside for this person. During thecourse of this permitted search, one of the officers observed defendant peek his head out of asecond-floor bedroom and quickly retreat back inside, closing the door.
Recognizing defendant as an individual with an outstanding parole violation warrant andhaving concerns for his safety, the officer summoned backup. By the time it arrived, however,defendant had absconded through a window. Inside the bedroom, cocaine was observed in plainview at the top of a large, department store-type shopping bag. The resident of the home testifiedthat this shopping bag belonged to defendant, who had been staying in the subject bedroom for afew days. Additionally, a toothbrush inside this bag contained defendant's DNA. Viewing thisevidence in the light most favorable to the People (see People v Contes, 60 NY2d 620[1983]), we find there is a valid line of reasoning and permissible inferences which could leadthe jury to the conclusion that defendant had dominion and control over the cocaine at the FrenchCourt residence so as to establish his guilt of criminal possession of a controlled substance inthird degree (see e.g. People vSawyer, 23 AD3d 845, 846 [2005], lv denied 6 NY3d 852 [2006]; People vElhadi, 304 AD2d 982 [2003], lv denied 100 NY2d 580 [2003]; People vMcLeod, 281 AD2d 746, 747-748 [2001], lv denied 96 NY2d 921 [2001]; Peoplev Fells, 279 AD2d 706 [2001], lv denied 96 NY2d 758 [2001]; People vWilliams, 195 AD2d 889, 891 [1993], lv denied 82 NY2d 808 [1993]; see alsoPeople v Manini, 79 NY2d 561 [1992]; People v Watson, 56 NY2d 632 [1982]).
With respect to defendant's convictions stemming from the recovery of drugs from theFrederick Street residence, "[a] defendant may not be convicted of any offense upon thetestimony of an accomplice unsupported by corroborative evidence tending to connect thedefendant with the commission of such offense" (CPL 60.22 [1]). Corroborative evidence,however, need not establish each element of the offense; rather, it must tend to connect adefendant to the charged crimes (see People v Besser, 96 NY2d 136, 143 [2001]). Here,while Johnson testified that he and defendant were selling drugs out of this residence and that thedrugs, which were stored in a sock, belonged to defendant, other evidence presented by thePeople sufficiently corroborates his testimony to support the convictions.
The People presented evidence that defendant rented a second-floor bedroom at thisresidence and that a person known as "Al" (defendant's full name is Alvin) was selling cocaineout of the residence. Testimony of several police officers further established that, as a searchwarrant was being executed on the residence, a sock full of cocaine was thrown out of asecond-floor window. Moreover, during the police raid, defendant ran from an upstairs bedroomand jumped out of a second-floor window.[FN*] A sizeable amount of cash, an electronic scale and cellular telephones were recovered in thebedroom from which defendant had fled. This evidence fully satisfied the accomplicecorroboration requirement (see CPL 60.22 [1]; People v [*3]Besser, supra; People v Henry, 222 AD2d 932 [1995],lv denied 88 NY2d 848 [1996]; People v Dennis, 210 AD2d 803, 804-805[1994], lv denied 85 NY2d 937 [1995]; People v Swinton, 200 AD2d 892 [1994],lv denied 83 NY2d 1007 [1994]; People v Williams, supra; People vLinkhorn, 184 AD2d 927, 927-928 [1992], lv denied 80 NY2d 905 [1992]).
Next, we are satisfied that County Court properly exercised its discretion in denying adefense motion to sever count one from the other two counts (see People v Gilmore, 106AD2d 399 [1984]). These counts were joinable because the "offenses are defined by the same orsimilar statutory provisions and consequently are the same or similar in law" (CPL 200.20 [2][c]). Moreover, defendant failed to make a convincing showing that he had important testimonyto give concerning one set of allegations but a genuine need to refrain from testifying concerningthe other (see CPL 200.20 [3] [b]; People v Lane, 56 NY2d 1, 10 [1982]).Finally, defendant did not demonstrate that the jury would somehow be "confuse[d]" and thus"unable to consider separately the proof as it relates to each offense" (CPL 200.20 [3] [a]).
Finally, we are unpersuaded that the cocaine discovered in plain view at the French Courtresidence during a consensual search permitted by a resident of that home was the product of anunlawful seizure warranting suppression (see People v Black, 14 AD3d 734, 735 [2005], lv denied 4NY3d 796 [2005]; People v Fells, 279 AD2d at 709; see also People v Williams, 11 AD3d 244 [2004], lv denied4 NY3d 749 [2004]; People v Adams, 244 AD2d 897 [1997], lv denied 91 NY2d887 [1998]) or that defendant's sentence is harsh warranting reduction by this Court.
Cardona, P.J., Lahtinen, Kane and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: While a trained police dog wasable to catch up with defendant and pin him to the ground, the dog became distracted, thuspermitting defendant to get away. He was finally apprehended two weeks later.