| People v Farmer |
| 2016 NY Slip Op 01095 [136 AD3d 1410] |
| February 11, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Douglas Farmer, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered July 10, 2012. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a controlled substance in the third degree, criminal possession of acontrolled substance in the fifth degree and criminally using drug paraphernalia in thesecond degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by vacating the sentence, and as modified the judgment is affirmed, and thematter is remitted to Onondaga County Court for further proceedings in accordance withthe following memorandum: On appeal from a judgment convicting him upon a juryverdict of criminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]), criminal possession of a controlled substance in the fifthdegree (§ 220.06 [5]), and two counts of criminally using drugparaphernalia in the second degree (§ 220.50 [2], [3]), defendant contendsthat County Court erred in refusing to suppress evidence seized by parole officers duringthe search of his apartment because the search was unlawful. We reject that contention.We conclude that "the record supports the court's determination that the search was'rationally and reasonably related to the performance of the parole officer's duty' and wastherefore lawful" (People vJohnson, 94 AD3d 1529, 1531-1532 [2012], lv denied 19 NY3d 974[2012], quoting People v Huntley, 43 NY2d 175, 181 [1977]). Indeed,"defendant's parole officer testified that he alone made the decision to include defendanton the list of parolees to be searched, and that he was motivated to do so by legitimatereasons related to defendant's status as a parolee" (id. at 1532). His testimonyestablished that defendant's placement on a search detail list was motivated by"information supplied by [a confidential informant that] provided [defendant's paroleofficer with] a reasonable basis to believe that defendant was selling drugs" (People vFelder, 272 AD2d 884, 884 [2000], lv denied 95 NY2d 905 [2000]; see People v Nappi, 83 AD3d1592, 1593-1594 [2011], lv denied 17 NY3d 820 [2011]; People v Johnson, 54 AD3d969, 970 [2008], lv denied 16 NY3d 798 [2011]). To the extent thatdefendant challenges that testimony, we "afford deference to the court's determinationthat the parole officer's testimony was credible" (Johnson, 94 AD3d at 1532), andwe conclude that there is no basis on this record to disturb the court's determination. Thecourt thus properly determined that "[t]he search, initiated by the parole officer basedupon information that defendant was selling drugs . . . , was substantiallyrelated to the performance of the parole officer's duty to detect and prevent paroleviolations" (People v Smith, 234 AD2d 1002, 1002 [1996], lv denied 89NY2d 988 [1997]).
Contrary to defendant's further contention, inasmuch as the search was initiated andconducted by the Division of Parole, and was in furtherance of parole purposes andrelated to the parole officers' duties, the fact that a police officer provided the paroleofficers with assistance in gaining entry to the apartment in order to facilitate the searchdoes not demonstrate that the parole officers acted as agents or conduits for the police(see People v Vann, 92AD3d 702, 703 [2012], lv denied 19 NY3d 868 [2012]; see alsoJohnson, 94 AD3d at 1532; Johnson, 54 AD3d at 970; People v Peterson, 6 AD3d363, 364 [2004], lv denied 3 NY3d 710 [2004]). Indeed, we conclude that"the assistance of [*2]police officers at the scene did notrender the search a police operation" (Vann, 92 AD3d at 703), and the recorddoes not establish that the entry into defendant's apartment was otherwise unlawful.
Defendant also contends that the conviction is not supported by legally sufficientevidence and that the verdict is against the weight of the evidence on the ground that thePeople failed to show constructive possession of the drugs and drug paraphernalia bydemonstrating that defendant " 'had dominion and control over the area wherethe contraband was found' " (People v Davis, 101 AD3d 1778, 1779 [2012], lvdenied 20 NY3d 1060 [2013]; see Penal Law § 10.00 [8]). Weconclude that defendant's contentions are without merit. Each of the crimes with whichdefendant was charged required proof of knowing possession (see Penal Law§§ 220.06 [5]; 220.16 [1]; 220.50 [2], [3]). Under a theory ofconstructive possession, "the People must show that the defendant exercised 'dominionor control' over the property by a sufficient level of control over the area in which thecontraband is found or over the person from whom the contraband is seized" (Peoplev Manini, 79 NY2d 561, 573 [1992]). Nonetheless, "exclusive access is notrequired" (People v Nichol,121 AD3d 1174, 1177 [2014], lv denied 25 NY3d 1205 [2015]; seePeople v Torres, 68 NY2d 677, 679 [1986]; People v Fuller, 168 AD2d 972,973 [1990], lv denied 78 NY2d 922 [1991]). Here, the People established thatdefendant was living in an efficiency apartment as the sole tenant, and that his paroleofficer had conducted various home visits with defendant at that apartment (seeDavis, 101 AD3d at 1779-1780). Despite defendant's testimony that other people hadaccess to the apartment, we conclude that the circumstances here provided the jury with"a sufficient basis . . . to conclude that . . . defendant [was]guilty of constructive possession of [the] contraband found within the apartment"(Torres, 68 NY2d at 679). Thus, viewed in the light most favorable to the People,the evidence is legally sufficient to establish that he had dominion and control over thearea where the contraband was found (see Davis, 101 AD3d at 1780; seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]) and, viewing the evidencein light of the elements of these possessory crimes in this jury trial (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see Bleakley, 69 NY2d at 495; Davis, 101 AD3d at 1780). Tothe extent that defendant contends that the drugs and drug paraphernalia were "planted"in his apartment, we note that "[i]t is well settled that issues of credibility are bestdetermined by the jury, given its opportunity to observe the demeanor of the witnesses"and, here, "[i]t cannot be said that the jury failed to give the evidence the weight it shouldbe accorded" (People v Blocker, 281 AD2d 943, 944 [2001], lv denied 96NY2d 826 [2001]; see generally Bleakley, 69 NY2d at 495).
We agree with defendant, however, that the court abused its discretion in sentencinghim as a second felony drug offender without affording him the opportunity tosubstantiate his constitutional challenge to the predicate felony conviction with thetranscripts of the proceeding underlying that conviction and without holding a hearingfor that purpose. Inasmuch as defendant did not controvert the existence of the predicatefelony conviction, it was incumbent upon defendant "to allege and prove facts toestablish his claim that the conviction was unconstitutionally obtained" (People v Konstantinides, 14NY3d 1, 15 [2009]; see CPL 400.21; People v Harris, 61 NY2d 9, 15[1983]). The record establishes that defendant, who was proceeding pro se, allegedcertain constitutional violations in writing, and repeatedly and timely requested thenecessary transcripts in order to prepare his constitutional challenge. The court promisedto obtain the transcripts for defendant, acknowledged on the scheduled hearing date itsoversight in failing to act on that promise and, upon being challenged by defendant at arescheduled hearing, ultimately admitted that, after months of adjournments, it haddecided not to order the transcripts as it had previously promised. Although there is norequirement that a trial court obtain such transcripts on a defendant's behalf, we concludethat, under the circumstances of this case, the court should not have proceeded tosentencing without at least attempting to obtain the transcripts sought by defendant andproviding defendant a hearing on his constitutional challenge to the predicate felonyconviction (see People v Gonzalez, 108 AD2d 622, 624 [1985]; cf. People vRuscito, 206 AD2d 841, 842 [1994], lv denied 84 NY2d 872 [1994]; seealso People v Zeoli, 212 AD2d 935, 935 [1995], lv denied 85 NY2d 916[1995]). We therefore modify the judgment by vacating the sentence, and we remit thematter to County Court to fulfill those steps before sentencing defendant. In light of ourdetermination, we do not reach defendant's challenge to the severity of the sentence.Present—Smith, J.P., Peradotto, Carni, Whalen and DeJoseph, JJ.