| People v King |
| 2016 NY Slip Op 01932 [137 AD3d 1572] |
| March 18, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vSeandell King, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Evan B. Hannay 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 (John H. Crandall, A.J.),rendered December 19, 2012. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a controlled substance in the third degree and criminal possessionof a controlled substance in the seventh degree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by reversing that part convicting defendant of criminal possession of a controlledsubstance in the seventh degree and dismissing count two of the indictment, and asmodified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jurytrial of criminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]) and criminal possession of a controlled substance in theseventh degree (§ 220.03). We reject defendant's contention that CountyCourt erred in summarily denying that part of his omnibus motion seeking to suppressheroin found on his person by the police following a stop of the vehicle he wasoperating. It is undisputed that the stop of defendant's vehicle was lawful because thearresting officer observed him fail to obey a stop sign while talking on his cell phone. Itis also undisputed that, when questioned by the officer, defendant stated that his driver'slicense was suspended. The officer then directed defendant to exit the vehicle and placedhim under arrest. During a search incident to the arrest, the officer found twenty packetsof heroin in the inside flap of defendant's long underwear, near his waistband, along with$330 in cash. In moving for suppression of the heroin, defendant "submitted onlydefense counsel's affirmation containing conclusory statements, and he therefore failed toraise factual issues sufficient to require a hearing" (People v Caldwell, 78 AD3d 1562, 1563 [2010], lvdenied 16 NY3d 796 [2011]; see CPL 710.60 [3] [b]; People vMendoza, 82 NY2d 415, 426 [1993]).
We reject defendant's related contention that the court erred in denying at trial hismotion to renew that part of the omnibus motion seeking suppression of the heroin.Defendant's application to renew was based upon the arresting officer's testimony at trial,which, according to defendant, established that he was subjected to an unlawful roadside"strip search." Defendant was not strip-searched, however; the officer merely patteddown defendant's waistband during a lawful search incident to the arrest and discoveredthe heroin in the top fold of his underwear. Defendant's reliance on People v Smith (134 AD3d1453 [2015]) is misplaced inasmuch as the officer in that case "pulled open the frontof defendant's underwear" and "looked at his genital area" (id. at 1454). Here, incontrast, defendant's underwear was not pulled open, and his genitals were not exposed.In any event, as the People point out, defendant was provided early in the case withpolice reports that specify the exact location where the heroin was found and the mannerin which it was found, and the officer's trial testimony was consistent with his reports.There was thus no basis for the court to revisit its suppression ruling in light of theofficer's trial testimony.
[*2] Defendant furthercontends that the conviction is not supported by legally sufficient evidence and that theverdict is against the weight of the evidence with respect to the charge of criminalpossession of a controlled substance in the third degree because the People failed toprove that he intended to sell the heroin, which is an element of that crime. We reject thatcontention. As noted, defendant possessed twenty packets of heroin, which, according tothe People's expert witness, was more than that commonly possessed by heroin users.The expert further testified that users of heroin do not typically have "hundreds ofdollars" in cash in their possession, as defendant did at the time of his arrest. Moreover,defendant did not possess any instruments that he could have used to consume the heroin,such as straws, needles, or spoons.
Under the circumstances, and viewing the evidence in the light most favorable to thePeople (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that thereis a "valid line of reasoning and permissible inferences which could lead a rationalperson to the conclusion reached by the jury," i.e., that defendant intended to sell thenarcotics he undisputedly possessed (People v Bleakley, 69 NY2d 490, 495[1987]; see People v Bedell,114 AD3d 1153, 1153-1154 [2014], lv denied 23 NY3d 1059 [2014]).Viewing the elements of the crime of criminal possession of a controlled substance in thethird degree as charged to the jury, we further conclude that the verdict is not against theweight of the evidence (see generally Bleakley, 69 NY2d at 495; People v Alverson, 79 AD3d1787, 1788 [2010]). As the People correctly concede, however, the count of theindictment charging defendant with criminal possession of a controlled substance in theseventh degree must be dismissed because it is an inclusory concurrent count of criminalpossession of a controlled substance in the third degree (see CPL 300.40 [3] [b];People v Coleman, 2 AD3d1045, 1047 [2003]; People v Delgado, 285 AD2d 654, 655 [2001], lvdenied 97 NY2d 680 [2001]), and we therefore modify the judgmentaccordingly.
We have reviewed defendant's remaining contentions and conclude that nonerequires reversal or further modification of the judgment. Present—Centra, J.P.,Peradotto, Lindley, DeJoseph and Scudder, JJ.