| People v Forsythe |
| 2009 NY Slip Op 01027 [59 AD3d 1121] |
| February 11, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MarvinForsythe, Appellant. |
—[*1] Marvin Forsythe, defendant-appellant pro se. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), renderedDecember 20, 2005. The judgment convicted defendant, upon a jury verdict, of attemptedcriminal possession of a controlled substance in the first degree and attempted criminalpossession of a controlled substance in the third 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 ofattempted criminal possession of a controlled substance in the first degree (Penal Law§§ 110.00, 220.21 [1]) and attempted criminal possession of a controlled substancein the third degree (§§ 110.00, 220.16 [1]). Defendant failed to preserve for ourreview his contention that the evidence is legally insufficient to establish his constructivepossession of the controlled substance, his intent to commit the crimes, or his attempt to do so(see People v Gray, 86 NY2d 10, 19 [1995]). In any event, his contention is withoutmerit. With respect to constructive possession, the People were required to "show that thedefendant exercised 'dominion or control' over the property by a sufficient level of control overthe area in which the contraband [was] found or over the person from whom the contraband[was] seized" (People v Manini, 79 NY2d 561, 573 [1992]). Here, the People presentedevidence that defendant went to an apartment at approximately 10:30 a.m. looking for a packagethat was supposed to be delivered by the United Parcel Service (UPS). Shortly thereafter, UPSreceived calls inquiring about why the package, which had an incorrect address, was notdelivered. When UPS called the telephone number listed on the package, the man who answeredthe telephone gave the correct address. UPS then informed the man that the package would bedelivered, and the police, who were aware that the package contained cocaine, arranged acontrolled delivery to that location. Shortly before the package was delivered, the policeobserved defendant in the area of the address where the package was to be delivered, pacingback and forth. After the package was delivered, defendant was located nearby, and thetelephone number of one of the cellular telephones in his possession was the telephone numberlisted on the package. That evidence, viewed in the light most favorable to the People (seePeople v Contes, 60 NY2d 620, 621 [1983]), is legally sufficient to establish that defendanthad the [*2]requisite control over the package and the locationwhere it was delivered (see People vJohnson, 54 AD3d 969, 970-971 [2008]).
The evidence is also legally sufficient to establish that defendant intended to possess thecocaine and to sell it (see People vHawkins, 45 AD3d 989, 991 [2007], lv denied 9 NY3d 1034 [2008]; People v Robinson, 26 AD3d 202[2006], lv denied 7 NY3d 762 [2006]), and that he attempted to commit the crimes. "Inorder to constitute an attempt, the defendant's 'conduct must have passed the stage of mere intentor preparation to commit a crime' " (People v Naradzay, 11 NY3d 460, 466 [2008], quotingPeople v Mahboubian, 74 NY2d 174, 189 [1989]). The "defendant must have 'engaged inconduct that came "dangerously near" commission of the completed crime' " (id. at 466,quoting People v Kassebaum, 95 NY2d 611, 618 [2001], cert denied 532 US1069 [2001], rearg denied 96 NY2d 854 [2001]). Here, defendant's conduct camedangerously near possession of the cocaine. Indeed, defendant did not come into possession ofthe cocaine solely because the police intercepted the package before he could do so (see People v Bens, 5 AD3d 391,391-392 [2004], lv denied 2 NY3d 796 [2004]).
County Court properly denied defendant's request for a circumstantial evidence chargeinasmuch as there was direct evidence of defendant's constructive possession of the cocaine (see People v Moni, 13 AD3d 262,262-263 [2004], lv denied 4 NY3d 833 [2005]; cf. People v Brian, 84 NY2d 887,889 [1994]; see generally People v Daddona, 81 NY2d 990, 992 [1993]). The court alsoproperly charged the lesser included offense of attempted criminal possession of a controlledsubstance in the first degree because there was a reasonable view of the evidence to support thatcharge (see People v Rosica, 199 AD2d 773, 774-775 [1993], lv denied 83 NY2d876 [1994]; see generally People v Glover, 57 NY2d 61, 63 [1982]). Defendant failed topreserve for our review his contention in his pro se supplemental brief that the first prong ofGlover was not met, i.e., that the offense was not of lesser grade or degree (seeCPL 470.05 [2]). In any event, that contention is without merit. CPL 1.20 (37), which defines theterm lesser included offense, provides in relevant part that, "[i]n any case in which it is legallypossible to attempt to commit a crime, an attempt to commit such crime constitutes a lesserincluded offense with respect thereto." "[T]he first prong of the Glover test [thus] isirrelevant" in this case (People v Shreve, 167 AD2d 698, 699 [1990]).
Defendant further contends that the prosecutor engaged in prosecutorial misconduct bymaking improper references to him and that the court's failure to give proper curativeinstructions denied him a fair trial. Defendant failed to object to most of the allegedly impropercomments and, when defense counsel made an objection, the court issued a curative instructionthat the jury is presumed to have followed (see People v Rivera, 281 AD2d 927, 928[2001], lv denied 96 NY2d 906 [2001]). We decline to exercise our power to address as amatter of discretion in the interest of justice the remainder of the allegedly improper commentsto which defendant failed to object (seePeople v Hall, 53 AD3d 1080, 1083 [2008], lv denied 11 NY3d 855 [2008]).The further contention of defendant that he was denied effective assistance of counsel on thePeople's interlocutory appeal is based on matters outside the record and thus must be pursued byway of a motion pursuant to CPL article 440 (see People v Keith, 23 AD3d 1133, 1134-1135 [2005], lvdenied 6 NY3d 815 [2006]). In his pro se supplemental brief, defendant also contends thatdefense counsel was ineffective in failing to make a specific trial order of dismissal motion andin failing to object to the People's request to charge a lesser included offense on other grounds.That motion and objection would have been unsuccessful, and thus it cannot be said that defensecounsel was thereby ineffective (seePeople v McDuffie, 46 AD3d 1385, 1386 [2007], lv denied 10 NY3d 867[2008]; People v Rivera, 45 AD3d1487, 1488 [2007], lv denied 9 NY3d 1038 [2008]; People v Ayala, 27 AD3d 1087,1088-1089 [2006], lv denied 6 NY3d 892 [2006]).
We have considered the remaining contentions of defendant in his main and pro sesupplemental briefs and conclude that they are without merit. Present—Smith, J.P.,Centra, Fahey, Green and Pine, JJ.