| People v Carpenter |
| 2008 NY Slip Op 04239 [51 AD3d 1149] |
| May 8, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Gerald L.Carpenter, Appellant. |
—[*1] Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Columbia County (Nichols, J.),rendered August 23, 2005, upon a verdict convicting defendant of the crime of criminalpossession of a controlled substance in the third degree.
Following months of investigation which included several controlled purchases of cocaineand heroin by confidential informants, a police detective submitted a detailed application seekinga no-knock search warrant for apartment 12H in the Hudson Terrace apartment complex in theCity of Hudson, Columbia County. The warrant was issued and officers executed it in the earlymorning hours of September 18, 2004. As they entered the apartment, the officers firstencountered defendant, who was lying on a couch in the living room with his head next to an endtable upon which rested an upside-down baseball hat containing crack cocaine. In other parts ofthe apartment, two other individuals were apprehended, considerable amounts of cash werediscovered, a gun was located and additional significant quantities of drugs were found. Basedupon the crack cocaine in the hat in close proximity to defendant, he was indicted for criminalpossession of a controlled substance in the third degree. His pretrial challenge to the searchwarrant was denied after a hearing. A jury thereafter found him guilty of the charged crime andhe was sentenced, as a predicate felon, to a prison term of 10 to 20 years. Defendant appeals.[*2]
Defendant initially argues that the search was illegalbecause the warrant authorized a search of 15 North Front Street, apartment 12H, and he assertsthat the search occurred at 15 South Front Street, apartment 12H. While the particularity of thewarrant is important, "[t]his does not mean that hypertechnical accuracy and completeness ofdescription must be attained but rather, from the standpoint of common sense, that thedescriptions in the warrant and its supporting affidavits be sufficiently definite to enable thesearcher to identify the persons, places or things that the Magistrate has previously determinedshould be searched or seized" (People v Nieves, 36 NY2d 396, 401 [1975] [citationsomitted]; see People v Lopez, 266 AD2d 735, 736-737 [1999], lv denied 94NY2d 922 [2000]). Stated another way, "an imprecise description of the premises to be searchedappearing on the face of the warrant will not invalidate a search so long as the descriptionenables the executing officers with reasonable effort [to] ascertain and identify the placeintended," and "a warrant found to lack a sufficiently precise description of the premises. . . may be validated by reference to a more precise description set forth in thesearch warrant applications and supporting documents" (People v Davenport, 231 AD2d809, 810 [1996], lv denied 89 NY2d 921 [1996] [internal quotation marks and citationsomitted]; see People v Davis, 146 AD2d 942, 943 [1989]).
Here, the manager of the apartment complex testified at the suppression hearing that the 13buildings that comprise the complex are all at 15 Front Street, they are located on both the northand south side of the street and, significantly, each building is individually numbered. Sheexplained that there is only one building 12, and the apartments in that building are designated byletters. Thus, in the entire complex, there is only a single apartment with the designation "12H."A police detective testified that the past practice of the police was to refer to the location of theentire apartment complex using the office address of 15 North Front Street. Moreover, theaffidavits submitted with the application for the warrant described in detail the location ofapartment 12H. Accordingly, we find that the description of the premises to be searched wassufficiently precise and defendant's suppression motion was properly denied.
Next, we consider defendant's contention that the evidence was legally insufficient in that thePeople failed to prove that he possessed the crack cocaine in the hat on the table. Defendant wasthe only individual in the living room of the apartment, the cocaine in the hat was in plain view,and it was in close proximity to defendant (i.e., within an arm's reach). Viewing the evidence inthe light most favorable to the People (see People v Acosta, 80 NY2d 665, 672 [1993];People v Coleman, 26 AD3d773, 774-775 [2006], lv denied 7 NY3d 754 [2006]), there was legally sufficientevidence to establish defendant's constructive possession of the crack cocaine (see People vElhadi, 304 AD2d 982, 983-984 [2003], lv denied 100 NY2d 580 [2003]; Peoplev Wilson, 284 AD2d 958, 958 [2001], lv denied 96 NY2d 943 [2001]; cf. Peoplev Edwards, 206 AD2d 597, 597-598 [1994], lv denied 84 NY2d 907 [1994]).
Finally, we are unpersuaded by defendant's assertion that his sentence was harsh andexcessive. Since the crime occurred prior to the effective date of the Drug Law Reform Act of2004 (L 2004, ch 738, enacted Dec. 14, 2004, eff Jan. 13, 2005), the ameliorative sentencingprovisions of that act do not apply (seePeople v Utsey, 7 NY3d 398, 402-403 [2006]). The sentence imposed was less than thepermissible maximum and defendant has an extensive criminal record. We find neither an abuseof discretion by the sentencing court nor extraordinary circumstances warranting a reduction ofdefendant's sentence (see People vWallach, 35 AD3d 913, 914 [2006]; People v Milner, 28 AD3d 873, 874-875 [2006]).
Cardona, P.J., Mercure, Spain and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.