| People v Binning |
| 2013 NY Slip Op 05223 [108 AD3d 639] |
| July 10, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Gavin Binning, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L.Mandel, and Maria Park of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Tomei, J.), rendered October 31, 2011, convicting him of criminal possession of acontrolled substance in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thatthe defendant was in constructive possession of the subject narcotics. In fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (seeCPL 470.15 [5]; People vDanielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to thefactfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor(see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing therecord here, we are satisfied that the verdict of guilt was not against the weight of theevidence (see People vRomero, 7 NY3d 633 [2006]).
We reject the defendant's contention that the Supreme Court erred in admittingtestimony regarding his payment of parking tickets issued to the car in which thenarcotics he was charged with possessing were found. Contrary to the defendant'scontention, the testimony was not Molineux evidence (see People vMolineux, 168 NY 264 [1901]), since it did not concern illegal or immoral acts, andthus, "could show nothing about his [criminal] propensity" (People v Arafet, 13 NY3d460, 465 [2009]; seePeople v McKean, 89 AD3d 866, 867 [2011]; People v Jenneman, 37 AD3d736, 737-738 [2007]). To the extent the defendant challenges the evidence onrelevancy grounds, the evidence was relevant to demonstrate the defendant's control overthe car in which the subject narcotics were recovered, even though the parking ticketswere paid after his arrest (cf. People v Ingram, 71 NY2d 474, 480-481 [1988]).
The defendant contends that the Supreme Court erred in admitting evidenceregarding his possession of a "fruit knife," which conduct was not the basis of anycriminal charge against him. To the extent that the defendant's contention concerns theadmission of testimony regarding the knife, rather than the knife itself, the claim isunpreserved for appellate review because the defendant [*2]failed to object to the testimony (see CPL 470.05[2]). In any event, although it was error to admit evidence regarding the defendant'spossession of the "fruit knife," since it had minimal probative value (see People v Aziziandavidi,100 AD3d 765, 765-766 [2012]; cf. People v Figueroa, 211 AD2d 811[1995]), the error was harmless (see People v Arafet, 13 NY3d at 468). First, theevidence against the defendant was overwhelming. Second, there was no significantprobability that the error affected the verdict, particularly since the police witness whotestified about the "fruit knife" indicated that he had seen "hundreds" of those knives andthat it was not uncommon for people to possess them. Thus, "the prejudicial effect of theevidence that was admitted in error could not have added much to the effect of theevidence properly admitted" (id.).
The defendant's contentions regarding the court's charge to the jury are unpreservedfor appellate review (see CPL 470.05 [2]). In any event, they are without merit. Aportion of the court's charge related to evidence in the case that certain investigativetechniques were not used. In that respect, instructions such as the one given here, that"[l]aw enforcement techniques and methods" are not the jury's "concern," should not beused (see People v Ali, 301 AD2d 609, 609 [2003]). However, the error does notrequire reversal because the charge, when read as a whole, adequately conveyed therelevant legal principles (see id.). Rivera, J.P., Skelos, Chambers and Austin, JJ.,concur.