| People v Quarless |
| 2014 NY Slip Op 09022 [123 AD3d 1060] |
| December 24, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Turrell Quarless, Appellant. |
Christine Moccia, Chappaqua, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Celia M. Curtis and RichardLongworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Neary, J.), rendered October 17, 2012, convicting him of criminal possession of acontrolled substance in the third degree, criminal possession of a controlled substance inthe fourth degree, and criminal possession of a controlled substance in the seventhdegree, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing, of that branch of the defendant's omnibus motion which was tosuppress physical evidence.
Ordered that the judgment is modified, on the law, by vacating the conviction ofcriminal possession of a controlled substance in the seventh degree, vacating the sentenceimposed thereon, and dismissing that count of the indictment; as so modified, thejudgment is affirmed.
Contrary to the defendant's contention, the Supreme Court properly denied thatbranch of his omnibus motion which was to suppress the crack cocaine found in hispocket at the time of his arrest, since the hearing evidence established that the policeofficers had probable cause to believe that the defendant had committed an offense intheir presence (see People v De Bour, 40 NY2d 210, 223 [1976]). Probable causearose when the officers, who were trained in narcotics transactions, observed thedefendant, in a high-crime area known for drug trafficking, reach into his pocket andextract therefrom a small plastic bag containing a substance that appeared to be cocaineand pass it to a man on a bicycle, who handed the defendant currency and then rode away(see People v Jones, 90 NY2d 835, 837 [1997]; People v Washington, 87NY2d 945, 947 [1996]; People v McRay, 51 NY2d 594 [1980]; People v Williams, 69 AD3d663, 664-665 [2010]; People v McCants, 67 AD3d 821, 822-823 [2009];People v Muhammed, 300 AD2d 54, 55 [2002]).
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hearthe testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410[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]).
[*2] At trial, the Supreme Court properly admitted into evidence expert testimony withrespect to the quantity and packaging of crack cocaine carried by someone who sellsdrugs, as opposed to someone who merely uses them, since the expert testimony wasbeyond the ken of the average juror (see People v Hicks, 2 NY3d 750, 751 [2004]; People vBrown, 97 NY2d 500, 505 [2002]; People v Hough, 51 AD3d 818, 818 [2008]; People v Hibbert, 27 AD3d662, 663 [2006]; People v Ray, 272 AD2d 203, 203-204 [2000]; Peoplev James, 266 AD2d 236, 236 [1999]).
The defendant was not deprived of the effective assistance of counsel, as the recordreveals that defense counsel provided meaningful representation (see People vBenevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147[1981]).
As the People correctly concede, under the facts of this case, the defendant'sconviction of criminal possession of a controlled substance in the seventh degree must bevacated, and that count of the indictment dismissed, as an inclusory concurrent count ofcriminal possession of a controlled substance in the third degree (see CPL 300.40[3] [b]; People v Lee, 39 NY2d 388, 390 [1976]; cf. Penal Law§§ 220.03, 220.16 [1]; People v Anderson, 91 AD3d 789, 790 [2012]).
The defendant's remaining contentions are unpreserved for appellate review and, inany event, without merit. Dillon, J.P., Dickerson, Austin and Cohen, JJ., concur.