| People v Scully |
| 2009 NY Slip Op 03243 [61 AD3d 1364] |
| April 24, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Rance P.Scully, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Matthew P. Worth of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), renderedFebruary 23, 2006. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a weapon in the fourth degree, criminal possession of a controlled substance in thethird degree, criminal possession of a controlled substance in the fifth degree and unlawfulpossession of marihuana.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the sentence imposed for unlawful possession of marihuana and as modified thejudgment is affirmed, and the matter is remitted to Oneida County Court for resentencing oncount five of the indictment.
Memorandum: Defendant appeals from a judgment convicting him in absentia following ajury trial of criminal possession of a weapon in the fourth degree (Penal Law former §265.01 [1]), criminal possession of a controlled substance in the third degree (§ 220.16[1]), criminal possession of a controlled substance in the fifth degree (§ 220.06 [5]) andunlawful possession of marihuana (§ 221.05). The conviction of criminal possession of acontrolled substance in the third and fifth degrees arises from cocaine that was seized, pursuantto the execution of a search warrant, from an apartment leased by defendant. The police alsoseized a handgun from defendant's person during the execution of the search warrant. Contraryto the contention of defendant, County Court properly determined that he failed to establish thathe has standing to challenge the basis for the issuance of the search warrant. "At a suppressionhearing, a defendant has the burden of establishing standing by demonstrating a personallegitimate expectation of privacy" (People v Whitfield, 81 NY2d 904, 905-906 [1993];see generally People v Wesley, 73 NY2d 351 [1989]). Although defendant was entitledto meet that burden by relying on the People's evidence (see People v Burton, 6 NY3d 584, 588-589 [2006]; People vGonzalez, 68 NY2d 950 [1986]), he failed to do so, and his moving papers were devoid ofany allegation that he had an expectation of privacy in the apartment. We note in addition thatdefendant challenged only the probable cause for the search warrant, and his expectation ofprivacy with respect to his person did not automatically establish standing to challenge thesearch of premises pursuant to a search warrant (see Burton, 6 NY3d at 590-591).[*2]
Defendant failed to preserve for our review hiscontention that the court erred in failing to repeat in its final jury instructions an instructionconcerning defendant's absence at the trial (see generally People v Carr, 59 AD3d 945 [2009]; People vDallas, 58 AD3d 1019, 1020-1021 [2009]), and we decline to exercise our power to reviewthat contention as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]). Defendant similarly failed to preserve for our review his contention that the court erred insua sponte instructing the jury not to draw any inference from defendant's failure to testify (see People v Robinson, 1 AD3d985, 986 [2003], lv denied 1 NY3d 633, 2 NY3d 805 [2004]). In any event, weconclude that, under the circumstances of this case, the court did not abuse its discretion ingiving that instruction (see People v Vereen, 45 NY2d 856 [1978]; People vRodriguez, 220 AD2d 208, 209 [1995], lv denied 87 NY2d 977 [1996]; People vGoins, 215 AD2d 111 [1995], lv denied 86 NY2d 735 [1995]).
Defendant also failed to preserve for our review his contention that the testimony of the threepolice witnesses that, in their experience, the amount of cocaine found in the apartment wasinconsistent with personal use constituted improper opinion testimony (see CPL 470.05[2]), as well as his contention that the court erred in failing to give limiting instructionsconcerning that testimony (see id.). We decline to exercise our power to review thosecontentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
As the People properly concede, however, the court erred in imposing a term of incarcerationof 15 days on count five of the indictment, charging defendant with unlawful possession ofmarihuana. Because there was no evidence that defendant had committed any prior Penal Lawarticle 220 or article 221 offenses within the preceding three years, the court was entitled only toimpose a fine on that count, and the maximum fine that could be imposed was $100 (seePenal Law § 221.05). We therefore modify the judgment by vacating the sentence imposedfor unlawful possession of marihuana, and we remit the matter to County Court for resentencingon count five of the indictment. Finally, we conclude that the sentence is not unduly harsh orsevere. Present—Scudder, P.J., Smith, Centra, Fahey and Pine, JJ.