| People v Dunbar |
| 2015 NY Slip Op 04715 [129 AD3d 419] |
| June 4, 2015 |
| Appellate Division, First Department |
[*1](June 4, 2015)
| The People of the State of New York,Respondent, v Rodney Dunbar, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (C. ScottMcAbee of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheila L. Bautista of counsel), forrespondent.
Judgment, Supreme Court, New York County (Robert M. Stolz, J.), rendered April24, 2013, convicting defendant, after a jury trial, of criminal possession of a controlledsubstance in the third and fifth degrees, and sentencing him, as a second felony drugoffender, to an aggregate term of 3
Defendant has not preserved his challenge to the sufficiency of the evidence, or tothe applicability of the automobile presumption (see People v Caba, 23 AD3d 291, 292 [1st Dept 2005],lv denied 6 NY3d 810 [2006]) and we decline to review these claims in theinterest of justice. As an alternative holding, we reject them on the merits. We also findthat the verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibilitydeterminations. During a traffic stop of a vehicle in which defendant was a passenger, thepolice smelled a strong odor of PCP and recovered five vials containing a large quantityof pure PCP from a console, with an open lid, next to the passenger seat. The police alsorecovered large amounts of cash from defendant, from the codefendant driver, and fromthe car. Defendant was properly convicted both under the automobile presumption (PenalLaw § 220.25 [1]) and the theory of joint constructive possession. The jurycould have reasonably concluded that "a person in possession of a large and valuablequantity of drugs would not permit another person to be in close proximity unless theywere both part of the same criminal enterprise and were joint possessors" (Caba,23 AD3d at 292; see also People v Leyva, 38 NY2d 160, 166-167 [1975]). Inother words, the jury could have reasonably concluded that defendant was aware, and injoint control, of the PCP, not merely because it was noticeable, but because he was partof the drug-trafficking operation that caused the PCP to be in the car in the firstplace.
Defendant did not preserve his claim that the driver's admission to the police that thevials contained PCP was relevant to his defense that the driver exclusively possessed thedrugs (see People v George, 67 NY2d 817, 819 [1986]), or his constitutionalclaim (see People v Lane, 7NY3d 888, 889 [2006]), and we decline to review them in the interest of justice. Inoffering this statement by the driver, a codefendant who had pleaded guilty before trial,defendant merely asserted that the statement was not offered for its truth, but to show thecodefendant's state of [*2]mind. However, defendantnever explained how the codefendant's state of mind was relevant. As an alternativeholding, we reject defendant's arguments, including his constitutional claim, on themerits (see Crane v Kentucky, 476 US 683, 689-690 [1986]). The codefendant'sstate of mind was relevant to whether the codefendant was a possessor of the drugs, butnot to whether defendant was also a possessor. Unlike the situation in Peoplev Osorio (75 NY2d 80, 86 [1989]), the codefendant's statement did not shift criminalliability away from defendant. Concur—Gonzalez, P.J., Mazzarelli, Acosta, Clarkand Kapnick, JJ.