| People v Conyers |
| 2008 NY Slip Op 01802 [48 AD3d 362] |
| February 28, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Darren Conyers, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (T. Charles Won of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Ralph A. Fabrizio, J.), rendered February 23,2006, convicting defendant, after a jury trial, of criminal possession of a controlled substance inthe third and fourth degrees, and sentencing him, as a second felony offender, to an aggregateterm of 6 to 12 years, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is nobasis for disturbing the jury's determinations concerning credibility. An officer observeddefendant retrieve small objects from under a paint can and exchange them for money. Theofficer did not see anyone else approach the paint can, which contained 48 bags of drugs, and thePeople's expert testified that possession of such a large number of bags was indicative of a dealerand not a buyer. Accordingly, there was ample evidence supporting the inference that defendantpossessed drugs with intent to sell (see e.g. People v Robinson, 26 AD3d 202 [2006], lv denied 7NY3d 762 [2006]). Defendant's acquittal of the sale charges does not warrant a differentconclusion (see People v Freeman, 298 AD2d 311 [2002], lv denied 99 NY2d582 [2003]). "[T]here is no good reason why a court should resolve any inconsistency in favor ofa defendant rather than the People who, after all, have no right of appellate review of juryacquittals in mixed verdicts." (People v Rayam, 94 NY2d 557, 562 [2000].) Althoughdefendant argues that mercy or leniency is an unlikely explanation of the mixed verdict becausethird degree sale and possession are both class B felonies and normally involve concurrentsentences, he does not explain how a jury would be privy to that information.
The trial court properly modified its Sandoval ruling to allow the prosecutor toquestion defendant about the precluded underlying facts of a prior drug felony conviction, sincedefendant opened the door to such questions by volunteering the precluded facts (see Peoplev Green, 257 AD2d 542, 543 [1999], lv denied 93 NY2d 899 [1999]). On directexamination of defendant, defense counsel elicited that defendant's instant arrest occurred in adrug-prone area. When, on cross-examination, the prosecutor asked defendant how he knew that,defendant referred to his prior conviction and proceeded to place before the jury, in a misleadingand incomplete fashion, [*2]some of the same facts he hadsuccessfully sought to keep out. Thus, he cannot be heard to complain about the prosecutor'sclarifying questions, which his testimony invited. Concur—Lippman, P.J., Friedman,Williams and Andrias, JJ.