| People v DeJesus |
| 2013 NY Slip Op 06480 [110 AD3d 1480] |
| October 4, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vFrancisco DeJesus, Appellant. |
—[*1]
Appeal from a judgment of the Supreme Court, Erie County (Ronald H. Tills, A.J.),rendered July 9, 1999. The judgment convicted defendant, upon two jury verdicts, ofcriminal possession of a controlled substance in the second degree, criminal possessionof a controlled substance in the third degree and criminally using drug paraphernalia inthe second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon two juryverdicts, of criminal possession of a controlled substance (CPCS) in the second degree(Penal Law § 220.18 [former (1)]), CPCS in the third degree (§ 220.16 [1]),and two counts of criminally using drug paraphernalia in the second degree (§220.50 [2], [3]). We note that the People retried defendant on the CPCS counts when thejury at the first trial could not reach a unanimous verdict on those counts, and thatSupreme Court entered a single judgment covering both trials at the time of sentencing.We reject defendant's contention that the court erred in allowing the People to read intoevidence at the second trial the testimony of defendant's girlfriend from the first trial.CPL 670.10 (1) provides that a witness's testimony from a previous proceeding may beused in a subsequent criminal proceeding "when at the time of such subsequentproceeding the witness is unable to attend the same by reason of death, illness orincapacity, or cannot with due diligence be found." After defendant's girlfriend suddenlybecame unavailable in the middle of the second trial, the People attempted to locate herbut were unsuccessful, and they thereafter established that they had exercised the duediligence required by the statute (see CPL 670.10 [1] [a]; People vArroyo, 54 NY2d 567, 569-570 [1982], cert denied 456 US 979 [1982]; People v Manning, 67 AD3d1378, 1379-1380 [2009], lv denied 14 NY3d 803 [2010]).
We reject defendant's further contention that the evidence is legally insufficient toestablish that he constructively possessed either the controlled substance or the drugparaphernalia. Where, as here, "there is no evidence that defendant actually possessed[such contraband], the People must establish that defendant exercised dominion orcontrol over the property by a sufficient level of control over the area in which thecontraband [was] found or over the person from whom the contraband [was] seized" (People v Pichardo, 34 AD3d1223, [*2]1224 [2006], lv denied 8 NY3d926 [2007] [internal quotation marks omitted]; see People v Manini, 79 NY2d561, 573 [1992]; see also Penal Law § 10.00 [8]). Here, we conclude thatthe evidence, viewed in the light most favorable to the People (see People vHines, 97 NY2d 56, 62 [2001], rearg denied 97 NY2d 678 [2001];People v Williams, 84 NY2d 925, 926 [1994]), is legally sufficient to establishthat defendant constructively possessed both the controlled substance and the drugparaphernalia (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
With respect to defendant's contention that the court erred in denying his motion fora mistrial when a lieutenant in the Buffalo Police Department testified that defendant wasa known drug dealer, we note that "the decision to grant or deny a motion for a mistrial iswithin the trial court's discretion" (People v Ortiz, 54 NY2d 288, 292 [1981]),and it cannot be said that the court abused its discretion in denying defendant's motion(see People v Ward, 107AD3d 1605, 1606 [2013]). Moreover, the court promptly instructed the jury todisregard the improper testimony, and the jury is presumed to have followed that curativeinstruction (see People vHawkes, 39 AD3d 1209, 1210 [2007], lv denied 9 NY3d 845 [2007]; People v Ochoa, 19 AD3d302, 302 [2005], lv denied 5 NY3d 855 [2005]). Defendant's furthercontention that there was a Brady violation based on the People's failure todisclose that a prosecution witness was the confidential informant who provided theinformation used to obtain a warrant to search the premises where the contraband wasfound is based on matters outside the record on appeal and thus may properly be raisedby way of a motion pursuant to CPL article 440 (see People v Johnson, 88 AD3d 1293, 1294 [2011],following remittal 96 AD3d 1586 [2012], lv denied 19 NY3d 1027 [2012];People v Ellis, 73 AD3d1433, 1434 [2010], lv denied 15 NY3d 851 [2010]). We have considereddefendant's remaining contentions and conclude that they are without merit.Present—Smith, J.P., Fahey, Sconiers, Valentino and Whalen, JJ.