| People v Walters |
| 2015 NY Slip Op 00067 [124 AD3d 1321] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vTimothy N. Walters, Appellant. |
Charles T. Noce, Conflict Defender, Rochester (Kathleen P. Reardon of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John Lewis DeMarco, J.),rendered July 29, 2011. The judgment convicted defendant, upon a nonjury verdict, ofcriminal possession of a controlled substance in the third degree, criminal possession of acontrolled substance in the fourth degree, criminally using drug paraphernalia in thesecond degree and unlawful possession of marihuana.
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 possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]), criminal possession of a controlled substance in the fourthdegree (§ 220.09 [1]), criminally using drug paraphernalia in the seconddegree (§ 220.50 [2]), and unlawful possession of marihuana(§ 221.05). Defendant failed to preserve for our review his contention that acertain individual at the house where defendant and the contraband were found did nothave authority to consent to the warrantless search there (see generally People v Price,112 AD3d 1345, 1345-1346 [2013]; People v Caballero, 23 AD3d 1031, 1032 [2005], lvdenied 6 NY3d 846 [2006]), and we decline to exercise our power to address it as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Contrary todefendant's further contention, County Court (DeMarco, J.) properly concluded that theindividual voluntarily consented to the police entry into the house (see People vGonzalez, 39 NY2d 122, 127-128 [1976]; People v McCray, 96 AD3d 1480, 1481 [2012], lvdenied 19 NY3d 1104 [2012]). Defendant's contention that the evidencesubsequently obtained pursuant to the search warrant should be suppressed as fruit of thepoisonous tree thus lacks merit (see generally Wong Sun v United States, 371 US471, 484-485 [1963]).
Contrary to defendant's further contention, the court properly considered the "drugfactory" presumption (Penal Law § 220.25 [2]) with respect to the counts ofcriminal possession of a controlled substance in the third and fourth degrees (see e.g.People v Pressley, 294 AD2d 886, 887 [2002], lv denied 98 NY2d 712[2002]; People v Riddick, 159 AD2d 596, 597 [1990], lv denied 76NY2d 741 [1990]; cf. People v Kims, 24 NY3d 422 [2014]). Viewing the evidence in the light most favorable to the People(see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that it is legallysufficient to support the conviction (see generally People v Bleakley, 69 NY2d490, 495 [1987]). Viewing the evidence in light of the elements of the crimes in thisnonjury trial (see People vDanielson, 9 NY3d 342, 349 [2007]), we also conclude that the verdict is notagainst the weight of the evidence (see generally Bleakley, 69 NY2d at 495).
We reject defendant's further contention that the Molineux court (Castro,A.J.) abused its discretion in permitting the People to present evidence that defendantwas present at a location where the police previously made an undercover purchase ofnarcotics (see People vWhitfield, 115 AD3d 1181, 1182 [2014], lv denied 23 NY3d 1044[2014]; People v Ray, 63AD3d 1705, 1706 [2009], lv denied 13 NY3d 838 [2009]; People v Lowman, 49 AD3d1262, 1263 [2008], lv denied 10 NY3d 936 [2008]). Defendant's [*2]contention that reversal is required based upon aRosario violation is also meritless. "Reversal based upon a Rosarioviolation is necessary only when a defendant demonstrates that he has been substantiallyprejudiced" (People v Turner, 216 AD2d 931, 932 [1995], lv denied 86NY2d 804 [1995]; see People vComfort, 60 AD3d 1298, 1300 [2009], lv denied 12 NY3d 924 [2009])and, here, defendant has not made the necessary showing of substantial prejudice (see People v Gardner, 26AD3d 741, 741 [2006], lv denied 6 NY3d 848 [2006]; People v Goston, 9 AD3d905, 906-907 [2004], lv denied 3 NY3d 706 [2004]).
Viewing the evidence, the law and the circumstances of this case, in totality and as ofthe time of representation, we conclude that defendant received meaningfulrepresentation (see generally People v Baldi, 54 NY2d 137, 147 [1981]). Finally,the sentence is not unduly harsh or severe. Present—Scudder, P.J., Centra, Faheyand DeJoseph, JJ.