| People v Davis |
| 2014 NY Slip Op 06405 [120 AD3d 1542] |
| September 26, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vChaz K. Davis, Appellant. |
Davison Law Office PLLC, Canandaigua (Mary P. Davison of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Erin Tubbs of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Vincent M. Dinolfo, J.),rendered March 12, 2012. The judgment convicted defendant, upon a nonjury verdict, ofcriminal sale of a controlled substance in the first degree and criminal possession of acontrolled substance in the third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a nonjuryverdict, of criminal sale of a controlled substance in the first degree (Penal Law§ 220.43 [1]) and two counts of criminal possession of a controlledsubstance in the third degree (§ 220.16 [1], [12]). We reject defendant'scontention that the verdict is against the weight of the evidence because one of thePeople's witnesses, a confidential informant who testified pursuant to a cooperationagreement, was not credible. " 'In a bench trial, no less than a jury trial, theresolution of credibility issues by the trier of fact and its determination of the weight tobe accorded the evidence presented are entitled to great deference' " (People v McCoy, 100 AD3d1422, 1422 [2012]; see People v Hollins, 278 AD2d 932, 932 [2000], lvdenied 96 NY2d 759 [2001]). Here, viewing the evidence in light of the elements ofthe crimes in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]).
Contrary to the further contention of defendant, we conclude that County Courtproperly denied defendant's motion to dismiss the indictment based upon New YorkState's alleged violation of the Interstate Agreement on Detainers (IAD or Agreement)(see CPL 580.20). The IAD is a compact entered into by, inter alia, the UnitedStates and New York State and which, as relevant here, "prescribes procedures by whicha member State may obtain for trial a prisoner incarcerated in another memberjurisdiction" (United States v Mauro, 436 US 340, 343 [1978]; see New Yorkv Hill, 528 US 110, 111 [2000]; People v Reilly, 136 AD2d 355, 359 [1988],lv denied 72 NY2d 865 [1988]). It is well established that "the provisions of theAgreement are triggered only when a 'detainer' is filed with the custodial (sending) Stateby another State (receiving) having untried charges pending against the prisoner"(Mauro, 436 US at 343; see CPL 580.20, art IV [a]). Here, defendant'sattendance in state court was secured pursuant to a writ of habeas corpus adprosequendum, and not pursuant to the IAD (see CPL 580.30). Because NewYork "never filed a detainer against [defendant], the Agreement never became applicableand [New York] was never bound by its provisions" (Mauro, 436 US at361).
We further conclude that there is no merit to defendant's contention that he wasimproperly sentenced as a second felony drug offender (see Penal Law§ 70.71 [1] [b]). Defendant's conviction of 21 USC § 841 (a)for possession with intent to distribute more than five grams of cocaine base is equivalentto a conviction of criminal possession of a controlled substance in the third degree, aclass B felony (see Penal Law § 220.16), and thus he was [*2]properly adjudicated a second felony drug offender (seePeople v Reilly, 273 AD2d 143, 143 [2000], lv denied 95 NY2d 937 [2000];see also People v Yensi, 251 AD2d 262, 263 [1998], lv denied 92 NY2d932 [1998]; see generally People v Muniz, 74 NY2d 464, 467-468 [1989]).
Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J.,Peradotto, Carni and Lindley, JJ.