| People v Kirkland |
| 2008 NY Slip Op 08903 [56 AD3d 1221] |
| November 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Timothy O.Kirkland, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Walter W. Hafner, Jr., J.), renderedMay 20, 2005. The judgment convicted defendant, upon a jury verdict, of criminal possession ofa controlled substance in the fifth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofcriminal possession of a controlled substance in the fifth degree (Penal Law § 220.06 [5]).We reject defendant's contention that County Court erred in refusing to suppress the cocainefound on defendant. According to the evidence presented by the People at the suppressionhearing, a State Trooper with many years of experience in narcotics investigations was assignedto work undercover in an area known for drug activity. That Trooper observed a man reach hishand into the driver's side window of a vehicle driven by defendant. Immediately thereafter, theman walked away from the vehicle and approached the Trooper's vehicle and sold marihuana tothe Trooper. Although the Trooper testified that he did not observe anything exchanged betweenthat man and defendant, in his experience a drug transaction had occurred. We agree with CountyCourt that the evidence thus supported a finding that there was probable cause to believe thatdefendant had engaged in criminal activity (see People v Jones, 90 NY2d 835, 837[1997]; People v Montalvo, 293 AD2d 380 [2002], lv denied 98 NY2d 699[2002]). The undercover team summoned by the Trooper then was entitled to stop defendant'svehicle, and it discovered the cocaine upon searching defendant after ordering him to exit thevehicle (see People v Thomas, 48AD3d 314, 314-315 [2008], lv denied 10 NY3d 871 [2008], cert denied 555 US —, 129 S Ct 415 [2008].)
By failing to renew his motion for a trial order of dismissal after presenting the testimony ofa witness, defendant failed to preserve for our review his contention that the evidence is legallyinsufficient to support the conviction (see People v Hines, 97 NY2d 56, 61 [2001],rearg denied 97 NY2d 678 [2001]; People v Pryor, 48 AD3d 1217, 1218 [2008], lv denied 10NY3d 868 [2008]). In any event, the evidence is legally sufficient and the verdict is not againstthe weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987])."Contrary to the defendant's contention, the People were not required to prove that he hadknowledge of the weight of the cocaine he possessed in order to establish that he committed thecrime of criminal possession of a controlled [*2]substance in thefifth degree" (People v Ballard, 51AD3d 1034, 1035 [2008], lv denied 11 NY3d 734 [2008]; see Penal Law§ 15.20 [4]; People v Green,32 AD3d 1181 [2006], lv denied 7 NY3d 902 [2006]). Defendant's unpreservedcontention that the court erred in failing to instruct the jury that it must find that defendant knewthe pure weight of the controlled substance is lacking in merit (see generally Ballard, 51AD3d at 1035; Green, 32 AD3d 1181 [2006]). Present—Scudder, P.J., Martoche,Centra, Lunn and Gorski, JJ.