| People v Archie |
| 2010 NY Slip Op 08227 [78 AD3d 1560] |
| November 12, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Derek L. Archie,Appellant. |
—[*1] Derek L. Archie, defendant-appellant pro se. Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Stephen R. Sirkin, A.J.), renderedNovember 23, 2009. The judgment convicted defendant, upon a nonjury verdict, of criminal possessionof a controlled substance in the third degree, criminal possession of a controlled substance in the fifthdegree and criminally using drug paraphernalia in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of, interalia, criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]).Defendant contends in his main brief that County Court erred in failing to conduct a hearing with respectto that part of his omnibus motion seeking to suppress evidence seized from a hotel room and in failingto decide that part of the motion. Defendant abandoned that contention inasmuch as he "did not obtaina ruling on [that part of his] motion, nor did [he] object when the [evidence] was admitted in evidenceat trial" (People v Smith, 13 AD3d1121, 1122 [2004], lv denied 4 NY3d 803 [2005]; see also People v Sommerville, 6 AD3d 1232 [2004], lv denied3 NY3d 648 [2004]). In any event, we conclude that there was no basis for the court to conduct ahearing (see Smith, 13 AD3d at 1122). To warrant a hearing on such a motion, a defendantmust make sufficient factual allegations to demonstrate a personal legitimate expectation of privacy inthe searched premises (see People vScully, 14 NY3d 861, 863-864 [2010]), and defendant failed to do so here (see People vChristian, 248 AD2d 960 [1998], lv denied 91 NY2d 1006 [1998]). Contrary to thefurther contention of defendant in his main brief, the court did not abuse its discretion in denying hisCPL 330.30 (3) motion to set aside the verdict on the ground of newly discovered evidence withoutconducting a hearing. Defendant "failed to show that the allegedly new evidence could not have beendiscovered earlier in the exercise of reasonable diligence" (People v Robertson, 302 AD2d956, 958 [2003], lv denied 100 NY2d 542 [2003]; see CPL 330.30 [3]; Peoplev McCullough, 275 AD2d 1018, 1019 [2000], lv denied 95 NY2d 936 [2000];People v Sharpe, 166 AD2d 620, 622-623 [1990], lv denied 77 NY2d 882 [1991]).[*2]
By failing to renew his motion for a trial order of dismissal afterpresenting evidence, defendant failed to preserve for our review the contention in his main brief that theevidence is legally insufficient to support the conviction (see People v Hines, 97 NY2d 56, 61[2001], rearg denied 97 NY2d 678 [2001]). In any event, that contention is without merit(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Defendant contends that he didnot have constructive possession of the cocaine and glassine envelopes found in a jar in the hotel roomand thus that the People failed to establish that he committed the offenses. We reject that contention."Where, as here, defendant is not found in actual possession of drugs [that] were not in plain view, thePeople must establish his [or her] constructive possession . . . with proof supporting theconclusion that he [or she] exercised dominion and control over the hotel room" (People v Echavarria, 53 AD3d 859,861 [2008], lv denied 11 NY3d 832 [2008]; see generally People v Manini, 79NY2d 561, 572-575 [1992]). A prosecution witness testified at trial that she rented three rooms fordefendant and his companions and that the room in which the drugs were found was defendant's room.Defendant testified at trial that he paid that witness for a room, and he admitted that he had a key to theroom in question. When the police executed the search warrant, defendant and a woman were foundsleeping in that room. There was men's clothing scattered throughout the room, and defendant admittedthat a jacket and pair of shoes in the room belonged to him. Viewing the evidence in the light mostfavorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that itis sufficient to establish defendant's constructive possession of the contents of the jar found in the hotelroom (see People v Ennis, 186 AD2d 145, 146 [1992], lv denied 81 NY2d 762[1992]). Contrary to defendant's contention, the fact that other individuals had access to that roomdoes not preclude a finding of constructive possession by defendant because possession may be joint(see Echavarria, 53 AD3d at 862; People v Elhadi, 304 AD2d 982, 984 [2003],lv denied 100 NY2d 580 [2003]). Viewing the evidence in light of the elements of the crimes inthis nonjury trial (see People v Danielson,9 NY3d 342, 349 [2007]), we further conclude that the verdict is not against the weight of theevidence (see generally Bleakley, 69 NY2d at 495).
We reject the contention of defendant in his main and pro se supplemental briefs that he wasdenied effective assistance of counsel. Defendant failed "to demonstrate the absence of strategic orother legitimate explanations for [defense] counsel's" stipulation to the admission in evidence of thelaboratory report (People v Rivera, 71 NY2d 705, 709 [1988]; see People v Johnson, 30 AD3d 1042,1043 [2006], lv denied 7 NY3d 790 [2006], reconsideration denied 7 NY3d 902[2006]). Defendant has also failed to demonstrate that defense counsel was ineffective in his questioningof a defense witness and his review of Rosario material. Viewing the evidence, the law, and thecircumstances of this case in totality and as of the time of the representation, we conclude thatdefendant received meaningful representation (see generally People v Baldi, 54 NY2d 137,147 [1981]). Defendant's remaining contentions with respect to allegedly ineffective assistance ofcounsel involve matters outside the record on appeal, and thus the proper procedural vehicle for raisingthose contentions is a motion pursuant to CPL 440.10 (see People v Dunbar, 74 AD3d 1227, 1229 [2010]; People v Slater, 61 AD3d 1328,1329-1330 [2009], lv denied 13 NY3d 749 [2009]).
Defendant further contends in his main and pro se supplemental briefs that the court failed toaddress an alleged Brady violation that defendant raised at sentencing. That contention is notpreserved for our review (see generallyPeople v Lundy, 48 AD3d 1046 [2008], lv denied 10 NY3d 936 [2008]; People v Singh, 5 AD3d 403 [2004],lv denied 2 NY3d 806 [2004]) and, in any event, it is without merit. " '[I]t is well settled thatevidence is not deemed to be Brady material when the defendant has knowledge of it,' andhere the record establishes that defendant was aware [of the evidence in question]" (People v Wall, 38 AD3d 1341, 1341[2007], lv denied 9 NY3d 852 [2007]; see People v McClain, 53 AD3d 556 [2008], lv denied 11NY3d 791 [2008]; Singh, 5 AD3d 403). We have reviewed the remaining contentions ofdefendant in his pro se supplemental brief and conclude that they are without merit.Present—Centra, J.P., Fahey, Peradotto, Lindley and Green, JJ.