| People v McCullough |
| 2013 NY Slip Op 02158 [104 AD3d 1343] |
| March 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vSamuel D. McCullough, Appellant. |
—[*1] Samuel D. McCullough, defendant-appellant pro se. Michael J. Violante, District Attorney, Lockport (Laura T. Bittner of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Matthew J. Murphy, III, J.),rendered November 21, 2011. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a controlled substance in the fourth degree and unlawfulpossession of marihuana.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of criminal possession of a controlled substance in the fourth degree (Penal Law§ 220.09 [1]) and unlawful possession of marihuana (§ 221.05). Viewingthe evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's contention in his main brief that theverdict is against the weight of the evidence (see generally People v Bleakley, 69NY2d 490, 495 [1987]). Contrary to defendant's additional contention in his pro sesupplemental brief, the evidence is legally sufficient to support the conviction (seegenerally id.). "When narcotics are found in open view in a room on privatepremises, every person 'in close proximity' to the drugs at the time of discovery ispresumed by statute to have knowingly possessed them" (People v Daniels, 37NY2d 624, 630-631 [1975]; see § 220.25 [2]; People v Kims, 96 AD3d1595, 1595-1596 [2012]). Here, the police entered defendant's apartment and founddefendant standing next to a table containing 49 bags of cocaine in plain view. The tablealso contained packaging materials and a scale, which indicated an intent to "package orotherwise prepare for sale such controlled substance" (§ 220.25 [2]) and,after he was handcuffed, defendant stated, "[E]verything in here is mine. It's all mine."The police then recovered a bag of marihuana and a bag of cocaine from his pockets.Although a visitor to the apartment who was in the shower when law enforcementarrived testified that all of the cocaine in the apartment belonged to him and not todefendant, the People established that the drugs were being packaged in defendant'sapartment and that the visitor had left the drugs in open view, under defendant's control,while he was in the shower.[*2]
Defendant further contends in his main brief thatCounty Court erred in denying his motion to suppress his statements to the police. Wereject that contention. Defendant's statements, i.e., "[E]verything in here is mine. It's allmine," were "spontaneous and not the product of interrogation" (People vYoungblood, 294 AD2d 954, 954 [2002], lv denied 98 NY2d 704 [2002]; see People v Cobado, 16AD3d 1114, 1114 [2005], lv denied 4 NY3d 885 [2005]). Defendant failedto preserve for our review his contention in his pro se supplemental brief that the courterred in failing to hold a Darden hearing (see CPL 470.05 [2]). In anyevent, "in making the determination that probable cause existed for the issuance of thewarrant authorizing the police to search the apartment, the court had before it the warrantapplication and the 'in-camera testimony or notes' of the issuing court, and thus aDarden hearing was not required" (People v Long, 100 AD3d 1343, 1345-1346 [2012]).Defendant's contention in his pro se supplemental brief that he was denied his right ofconfrontation is likewise unpreserved for our review and without merit (seeKims, 96 AD3d at 1598-1599).
We reject the further contention of defendant in his pro se supplemental brief that hewas denied effective assistance of counsel. Contrary to defendant's contention, defensecounsel challenged the sufficiency of the search warrant and, as noted above, there wasno need for a Darden hearing (see Long, 100 AD3d at 1345-1346)."[T]he evidence, the law and the circumstances of [this] case, viewed together and as ofthe time of representation, reveal that meaningful representation was provided"(People v Satterfield, 66 NY2d 796, 798-799 [1985]).
Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J.,Peradotto, Carni, Lindley and Whalen, JJ.