| People v Moultrie |
| 2012 NY Slip Op 07370 [100 AD3d 401] |
| November 8, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Derrick Moultrie, Appellant. |
—[*1] Derrick Moultrie, appellant pro se. Cyrus R. Vance, Jr., District Attorney, New York (Martin J. Foncello of counsel), forrespondent.
Judgment, Supreme Court, New York County (Robert M. Stolz, J., at dismissal motion;Thomas Farber, J., at jury trial and sentencing), rendered May 25, 2010, convicting defendant ofcriminal possession of a controlled substance in the fifth and seventh degrees, and sentencinghim, as a second felony drug offender whose prior felony conviction was a violent felony, to anaggregate term of 2½ years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence (see People v Danielson, 9NY3d 342, 348 [2007]). Defendant asserts that the evidence failed to prove he possessed500 milligrams of cocaine, the threshold for fifth-degree possession (Penal Law § 220.06[5]).
The police recovered nine similar bags of cocaine from defendant, and there is nothing tosuggest the possibility that the bags differed significantly in purity. A chemist testified that hecombined the contents of the bags and gave a representative sample of the combined drugs toanother chemist. The second chemist testified that she measured the purity of the cocaine in thesample and mathematically computed the total weight of the cocaine contained in the nine bags.She concluded that the total weight of cocaine was nearly three times the statutory threshold. Thesecond chemist also described the standard procedure in obtaining a representative sample.
This testimony provided ample grounds for the jury to conclude that a proper samplingmethod had been employed and that it established defendant's guilt (see People v Hill, 85NY2d 256, 261 [1995]; People v Argro, 37 NY2d 929 [1975]). The absence of testimonyfrom the first chemist as to whether he followed the standard procedure for combining the drugsdoes not undermine that conclusion. Even accepting the unlikely possibility that one or more ofthe bags contained cocaine of a dramatically higher purity than the others, defendant haspresented no plausible theory of how the first chemist might have combined the drugs but stillobtained a sample that was not only unrepresentative, but so skewed that it led to a grosslyinaccurate calculation.
Similarly, the court properly declined to charge seventh-degree possession as a lesser [*2]included offense of fifth-degree possession. No reasonable view ofthe evidence, viewed in the light most favorable to defendant, supported that charge (seee.g. People v Butler, 248 AD2d 274 [1st Dept 1998], lv denied 91 NY2d1005 [1998]). There was no basis, other than speculation, for the jury to find that the quantity ofcocaine was less than 500 milligrams.
The alleged defects in the grand jury presentation did not rise to the level of impairing theintegrity of the proceeding and did not warrant the exceptional remedy of dismissal (seePeople v Huston, 88 NY2d 400, 410 [1996]; People v Darby, 75 NY2d 449, 455[1990]).
We have considered and rejected defendant's pro se claims. Concur—Andrias J.P.,Saxe, Moskowitz, Abdus-Salaam and Manzanet-Daniels, JJ.