| People v Holley |
| 2009 NY Slip Op 08400 [67 AD3d 1438] |
| November 13, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DominiqueHolley, Appellant. |
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Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered July 24,2008. The judgment convicted defendant, after a nonjury trial, of criminal possession of acontrolled substance in the third degree, criminal possession of a controlled substance in thefourth degree and criminally using drug paraphernalia in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her after a nonjury trial of,inter alia, criminal possession of a controlled substance in the third degree (Penal Law §220.16 [12]) and criminal possession of a controlled substance in the fourth degree (§220.09 [1]). Defendant made only a general motion for a trial order of dismissal and thus failedto preserve for our review her contention that the evidence is legally insufficient to establish herconstructive possession of the cocaine found in the apartment where the police executed a searchwarrant (see People v Gray, 86 NY2d 10, 19 [1995]; People v Alejandro, 60 AD3d 1381 [2009], lv denied 12NY3d 850 [2009]). In any event, defendant's contention lacks merit (see generally People vBleakley, 69 NY2d 490, 495 [1987]). The evidence established that defendant was in theapartment when the search warrant was executed, and the police found women's clothing andbills from the gas company addressed to defendant at that apartment. We thus conclude that theevidence is legally sufficient to establish defendant's constructive possession of the cocaine (see People v Patterson, 13 AD3d1138, 1139 [2004], lv denied 4 NY3d 801 [2005]). The trier of fact was entitled todiscredit the testimony of defendant that she had moved out of the apartment a few weeks earlierand had simply left behind some "old clothes" and other "garbage stuff" (see generallyPeople v Young, 197 AD2d 874, 874-875 [1993], lv denied 82 NY2d 854 [1993]).Contrary to defendant's further contention, viewing the evidence in light of the elements of thecrimes in this nonjury trial (see Peoplev Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against theweight of the evidence (see generally Bleakley, 69 NY2d at 495).Present—Scudder, P.J., Centra, Fahey, Green and Gorski, JJ.