| People v Shire |
| 2010 NY Slip Op 06909 [77 AD3d 1358] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Sharmarke Shire, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Brian P. Dassero of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered March 18,2009. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlledsubstance in the third degree (two counts) and criminally using drug paraphernalia in the second degree(two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified on the law byreversing that part convicting defendant of criminally using drug paraphernalia in the second degreeunder count three of the indictment and dismissing that count of the indictment and as modified thejudgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of twocounts each of criminal possession of a controlled substance in the third degree (Penal Law §220.16 [1], [12]) and criminally using drug paraphernalia in the second degree (§ 220.50 [1],[2]). Defendant failed to preserve for our review his contention that the admission of testimony of apolice detective on two occasions that defendant possessed the cocaine with the intent to sell it invadedthe province of the jury. With respect to the first occasion, defendant objected to the testimony on adifferent ground from that raised herein (seePeople v Huebert, 30 AD3d 1018 [2006], lv denied 7 NY3d 813 [2006]; seegenerally People v Dawson, 50 NY2d 311, 324 [1980]) and, with respect to the second occasion,defendant made only a general objection to the testimony. "A party's failure to specify the basis for [hisor her] general objection renders [the] argument unpreserved for [our] review" (People vEverson, 100 NY2d 609, 610 [2003]; see People v Tevaha, 84 NY2d 879, 880-881[1994]). In any event, even assuming, arguendo, that the court erred in admitting the testimony on bothoccasions, we conclude that any error is harmless (see People v Ruffins, 31 AD3d 1180 [2006]; People v Russell, 2 AD3d 1455, 1457[2003], lv denied 2 NY3d 745 [2004]).
Defendant further contends that the search warrant for the apartment in question was not supportedby probable cause. It is, however, "defendant's burden to establish, in the first instance, standing tochallenge the search warrant" (People vMcCall, 51 AD3d 822, 822 [2008], lv denied 11 NY3d 856 [2008]). Inasmuch asdefendant failed to demonstrate any legitimate expectation of privacy in the [*2]apartment, he has no standing to challenge the search of the apartment(see People v Ortiz, 83 NY2d 840, 842-843 [1994]; People v Gonzalez, 45 AD3d 696 [2007], lv denied 10 NY3d811 [2008]; People v Myers, 303 AD2d 139, 142 [2003], lv denied 100 NY2d 585[2003]).
We agree with defendant, however, that the evidence is not legally sufficient to support theconviction of criminally using drug paraphernalia in the second degree under count three of theindictment. We therefore modify the judgment accordingly. A person is guilty of that crime when he orshe "knowingly possesses or sells . . . [d]iluents, dilutants or adulterants, including but notlimited to, any of the following: quinine hydrochloride, mannitol, mannite, lactose or dextrose, adaptedfor the dilution of narcotic drugs or stimulants under circumstances evincing an intent to use, or undercircumstances evincing knowledge that some person intends to use, the same for the purpose ofunlawfully mixing, compounding, or otherwise preparing any narcotic drug" (Penal Law § 220.50[1]). Here, there was no evidence that the substance in question was one of the listed substances and,indeed, there was no evidence establishing the identity of the substance in question. In addition, therewas no evidence indicating that the substance was actually being used to dilute the drugs that werefound in the apartment.
We reject defendant's contention that the evidence was legally insufficient to support the convictionof criminally using drug paraphernalia in the second degree under count four of the indictment (PenalLaw § 220.50 [2]; see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Viewing the evidence in light of the elements of the first, second and fourth counts of the indictment ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we reject defendant's further contention that theverdict with respect to those counts is against the weight of the evidence (see generallyBleakley, 69 NY2d at 495).
The sentence is not unduly harsh or severe. We have considered defendant's remaining contentionand conclude that it is without merit. Present—Scudder, P.J., Martoche, Smith, Fahey andGreen, JJ.