| People v James |
| 2011 NY Slip Op 09049 [90 AD3d 1249] |
| December 15, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v MauriceJames, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Mercure, A.P.J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered October 8, 2010, upon a verdict convicting defendant of the crimes of criminalpossession of a controlled substance in the third degree, criminal possession of a controlledsubstance in the fourth degree, aggravated unlicensed operation of a motor vehicle in the thirddegree, reckless driving and unlawfully fleeing a police officer in a motor vehicle in the thirddegree.
In December 2009, City of Albany police officers were surveilling a suspected "smokehouse"where crack cocaine was allegedly purchased and consumed. Defendant paid a brief visit to thebuilding and, after getting into his vehicle to leave, he failed to signal when maneuvering his carinto traffic. A waiting patrol car was instructed to stop his vehicle, but defendant fled when thestop was attempted. Although he was taken into custody at a nearby apartment complex after abrief chase, officers had lost sight of defendant's vehicle during the pursuit and no contrabandwas found on his person or in his vehicle when he was apprehended. A resident of the apartmentcomplex notified police, however, that he had observed defendant walk along the side of anearby building just prior to their arrival, and a search of that area disclosed a substantial amountof crack cocaine.
Defendant was thereafter charged in an indictment with criminal possession of a [*2]controlled substance in the third degree, criminal possession of acontrolled substance in the fourth degree, aggravated unlicensed operation of a motor vehicle inthe third degree, reckless driving and unlawfully fleeing a police officer in a motor vehicle in thethird degree. He was found guilty as charged following a jury trial, and County Court sentencedhim to an aggregate prison term of eight years to be followed by postrelease supervision of threeyears. Defendant appeals and we affirm.
Defendant initially argues that his conviction upon the criminal possession of a controlledsubstance counts was unsupported by legally sufficient evidence and against the weight of theevidence. Specifically, he contends that the People failed to establish that he knowinglypossessed crack cocaine or that he intended to sell it (see Penal Law § 220.09 [1];§ 220.16 [1]).[FN*]We disagree.
Evidence was presented at trial that defendant visited a suspected "smokehouse" that hadbeen the scene of several prior narcotics arrests, fled when investigators attempted to stop hisvehicle, and was alone in the area where the drugs were found immediately before police arrived(see People v Recore, 56 AD3d1233, 1234 [2008], lv denied 12 NY3d 761 [2009]). Although defendant attacks thecredibility of the witness who saw him in the area where the drugs were found, that issue wasfully explored upon cross-examination and presented a credibility question that was properlyresolved by the jury (see People vDavis, 83 AD3d 1210, 1211 [2011], lv denied 17 NY3d 794 [2011]). The jurywas likewise free to credit the testimony of a police officer who had undergone training withregard to narcotics offenses and made numerous narcotics-related arrests, and opined that theamount of the crack cocaine recovered and its packaging in individually wrapped bags wasconsistent with an intent to sell it (see id.; see also People v Sudler, 75 AD3d 901, 905 [2010], lvdenied 15 NY3d 956 [2010]). In light of the foregoing, we conclude that defendant'sconviction upon the first and second counts of the indictment was based upon legally sufficientevidence and was not against the weight of the evidence.
We reject defendant's argument that County Court erred in permitting an investigator whohad discovered the drugs at the apartment complex to identify, upon redirect examination, a trialexhibit consisting of those drugs. The investigator testified on direct and cross-examinationregarding finding the drugs and turning them over to another officer, who had previouslyidentified the trial exhibit. During the direct examination of the investigator, however, the Peopleneglected to obtain his identification of the trial exhibit and move it into evidence. The scope "ofredirect examination is, for the most part, governed by the sound discretion of the trial court"and, given the lack of any prejudice to defendant, we cannot say that County Court abused itsdiscretion in permitting the People to cure the omission (People v Melendez, 55 NY2d445, 451 [1982]; see People vGuitierrez, 74 AD3d 1834 [2010], lv denied 15 NY3d 852 [2010]; [*3]Peoplev Dennis, 55 AD3d 385, 386 [2008], lv denied 12 NY3d 783 [2009]).
Defendant also asserts that certain remarks made by the prosecutor in his summation wereprejudicial and constitute reversible error. Defense counsel contended that the drugs were foundin a crime-ridden neighborhood and that, as a result, there was a reasonable doubt as to whetherdefendant had possessed them. Counsel elicited from the witness who observed defendant priorto the arrival of police that local residents were afraid to call the police and that there were"[r]epercussions for doing the right thing," a remark counsel stressed in his summation whileattacking that witness's credibility. In our view, the prosecutor's comment that the witnesstestified notwithstanding those repercussions constituted a fair response to defense counsel'sargument (see People v Halm, 81 NY2d 819, 821 [1993]; People v Hughes, 280AD2d 694, 696-697 [2001], lv denied 96 NY2d 801 [2001]).
Finally, we have considered defendant's remaining argument that his sentence was harsh andexcessive and find it to be lacking in merit.
Peters, Spain, Rose and Kavanagh, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: *Defendant did not advance thelatter point in his trial motion to dismiss and, therefore, this issue is not properly preserved (see People v Salaam, 46 AD3d1130, 1131 [2007], lv denied 10 NY3d 816 [2008]). Nonetheless, we necessarilyconsider whether all elements of the charged crimes were established beyond a reasonable doubtin the context of our weight of the evidence review (see People v Danielson, 9 NY3d 342, 349 [2007]).