| People v Ortiz |
| 2009 NY Slip Op 03016 [61 AD3d 779] |
| April 14, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v TracyOrtiz, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Camille O'HaraGillespie of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldberg,J.), rendered January 3, 2006, convicting him of criminal possession of a controlled substance inthe second degree, conspiracy in the second degree, criminal sale of a controlled substance in thethird degree (three counts), criminal possession of a controlled substance in the third degree(seven counts), criminal possession of a controlled substance in the fourth degree (five counts),and criminal possession of a weapon in the third degree (three counts), after a nonjury trial, andimposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that the evidence was legally insufficient to sustain his convictionsof criminal possession of a controlled substance in the second degree (Penal Law § 220.18[1]), conspiracy in the second degree (Penal Law § 105.15), and criminal possession of aweapon in the third degree (three counts) (Penal Law § 265.02 [former (4)]), and that theverdict was against the weight of the evidence.
A defendant may constructively possess drugs if he has dominion or control over them as aresult of his authority over the person who actually possesses them (see People v Manini,79 NY2d 561, 573 [1992]). Viewing the evidence in the light most favorable to the prosecution(see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient toestablish that the defendant exercised dominion or control over the drugs as a result of hisauthority over the person who actually [*2]possessed the drugs,and thus was legally sufficient to establish that he was in constructive possession of the drugsbeyond a reasonable doubt (see People v Manini, 79 NY2d at 573; People v Johnson, 54 AD3d 969,971 [2008]). In addition, the evidence was legally sufficient to establish that the defendantentered into an agreement with others to commit a class A felony, and committed an overt act infurtherance thereof, establishing that he committed the crime of conspiracy in the second degreebeyond a reasonable doubt. Moreover, the evidence was legally sufficient to support thedefendant's convictions of criminal possession of a weapon in the third degree as the accomplicetestimony was properly corroborated (see CPL 60.22 [1]). Further, the evidence,including the wiretapped conversations, was legally sufficient to establish that the defendantexercised dominion or control over certain weapons, as he had authority over the locked safe inwhich those weapons were located, and thus was legally sufficient to establish that he was inconstructive possession of those weapons beyond a reasonable doubt (see People vManini, 79 NY2d at 573; People vFondren, 43 AD3d 707, 708 [2007]).
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the factfinder's opportunity to view the witnesses, hear the testimony, andobserve demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing therecord here, we are satisfied that the verdict of guilt was not against the weight of the evidence(see People v Romero, 7 NY3d633 [2006]). Mastro, J.P., Fisher, Angiolillo and Balkin, JJ., concur.