| People v Alverson |
| 2010 NY Slip Op 09785 [79 AD3d 1787] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Melissa J.Alverson, Appellant. |
—[*1] Thomas E. Moran, District Attorney, Geneseo (Eric R. Schiener of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Dennis S. Cohen, J.), renderedOctober 9, 2008. The judgment convicted defendant, upon a jury verdict, of criminal possessionof a controlled substance in the third degree, criminal possession of a controlled substance in thefourth degree and endangering the welfare of a child (four counts).
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice by reducing the sentence to a determinate term ofimprisonment of three years and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of,inter alia, criminal possession of a controlled substance in the third degree (Penal Law §220.16 [1]) and criminal possession of a controlled substance in the fourth degree (§220.09 [1]). Defendant contends that County Court erred in failing to charge criminal possessionof a controlled substance in the fourth degree as a lesser included offense of criminal possessionof a controlled substance in the third degree. That contention is not preserved for our reviewbecause defendant failed to request such a charge (see People v Buckley, 75 NY2d 843,846 [1990]). In any event, defendant's contention lacks merit inasmuch as criminal possession ofa controlled substance in the fourth degree pursuant to Penal Law § 220.09 (1) contains anelement based on the weight of the drugs possessed by defendant that is not an element ofcriminal possession of a controlled substance in the third degree pursuant to section 220.16 (1)(see People v Lee, 196 AD2d 509 [1993], lv denied 82 NY2d 851 [1993]).
Defendant also failed to preserve for our review her contention that the court erred incharging the jury with respect to the drug factory presumption pursuant to Penal Law §220.25 (2), and we decline to exercise our power to review that contention as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). We reject the furthercontention of defendant that the evidence is legally insufficient to establish her possession of thecocaine found in her apartment by the police during the execution of a search warrant (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). A large bag containing 36 smallerbags of cocaine was found on the dresser in defendant's bedroom, and a [*2]neighbor testified that he purchased cocaine at the residence fromdefendant, as well as from her boyfriend. In addition, defendant was on the front porch of theapartment when the police executed the warrant, and she acknowledged that she resided in theapartment. Thus, even without taking into consideration the drug factory presumption, weconclude that the People established that "defendant exercised 'dominion or control' over theproperty by a sufficient level of control over the area in which the [drugs were] found"(People v Manini, 79 NY2d 561, 573 [1992]; see People v Forsythe, 59 AD3d 1121, 1121-1122 [2009], lvdenied 12 NY3d 816 [2009]).
Contrary to the contention of defendant, the evidence is legally sufficient to establish herintent to sell the drugs (see generally Bleakley, 69 NY2d at 495). Defendant's furthercontention that the evidence is legally insufficient to support the conviction of four counts ofendangering the welfare of a child (Penal Law § 260.10 [1]) is not preserved for ourreview (see People v Gray, 86 NY2d 10, 19 [1995]). Viewing the evidence in light of theelements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict is not against the weight of the evidence (see generally Bleakley, 69NY2d at 495).
We agree with defendant, however, that the sentence of a five-year term of imprisonment isunduly harsh and severe. It is true, as the People point out, that defendant allowed cocaine to besold out of her apartment, where she lived with her four young children, and she refused toaccept responsibility for her actions. Nevertheless, defendant had no criminal record and, prior totrial, she was offered the opportunity to plead guilty to attempted criminal possession of acontrolled substance in the third degree in exchange for a sentence promise of shock probation.Also, as the People correctly conceded at sentencing, defendant was less culpable than herboyfriend, who was the primary target of the drug investigation. Defendant's boyfriend pleadedguilty to a felony drug charge and was sentenced to a term of imprisonment of three years. Thus,as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b]), we modify thejudgment by reducing the sentence to a determinate term of imprisonment of three years.Present—Martoche, J.P., Centra, Fahey, Lindley and Sconiers, JJ.