| People v Fineout |
| 2016 NY Slip Op 03634 [139 AD3d 1394] |
| May 6, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Jeffrey D. Fineout, Appellant. |
The Glennon Law Firm, P.C., Rochester (Peter J. Glennon of counsel), fordefendant-appellant.
Kristyna S. Mills, District Attorney, Watertown (Harmony A. Healy of counsel), forrespondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court inthe Fourth Judicial Department, from an order of the Jefferson County Court (Kim H.Martusewicz, J.), dated December 5, 2013. The order denied the motion of defendantpursuant to CPL 440.10.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from an order denying his CPL article 440 motionto vacate the 2011 judgment convicting him following a jury trial of, inter alia, criminalpossession of a controlled substance in the third degree (Penal Law§ 220.16 [1]), criminal possession of marihuana in the second degree(§ 221.25), and two counts of criminally using drug paraphernalia in thesecond degree (§ 220.50 [2], [3]). The charges against defendant stemmedfrom an investigation of various individuals associated with a certain apartment inWatertown (People vFineout, 96 AD3d 1601 [2012], lv denied 19 NY3d 1025 [2012]).Defendant contends that, despite finding that the People committed Bradyviolations by failing to disclose that a witness had been offered consideration to inducehis testimony against defendant, failing to correct that witness's testimony to the contrary,and compounding the error by emphasizing the misinformation on summation, CountyCourt erred in denying his motion on the ground that such errors were harmless. Wereject that contention.
Even assuming, arguendo, that the court's procedural ground for denial of the motionpursuant to CPL 440.10 (3) (a) was unwarranted because defendant was not afforded anadequate opportunity to develop a factual record for appellate review on direct appeal (see generally People vWagstaffe, 120 AD3d 1361, 1363 [2014], lv denied 25 NY3d 1173[2015]), we conclude that, in addressing the merits (see CPL 440.30 [2]), thecourt properly determined that the Brady violations constituted harmless errorinasmuch as there is no reasonable possibility that they might have contributed to theverdict (see People v Pressley, 91 NY2d 825, 827 [1997]; People v Rivera, 70 AD3d1484, 1484 [2010], lv denied 15 NY3d 756 [2010]). Here, there wasoverwhelming evidence that defendant, who was discovered sleeping on the couch in thesubject apartment, had constructive possession of the drugs and paraphernalia, i.e., thathe exercised dominion and control over the area in which the contraband was found (see generally People v Farmer,136 AD3d 1410, 1411 [2016]). Indeed, there was evidence that defendant resided atthe apartment, had a significant role in facilitating drug activity for one of the individualsunder investigation, conducted drug transactions out of the apartment and was arranginga sale on his cell phone just prior to his arrest, and was entrusted to remain alone in theapartment containing large amounts of various drugs, packing materials, and otherequipment, much of which was in plain view, as well as a significant amount of money(see People v Bundy, 90 NY2d 918, 920; People v Doleo, 261 AD2d 194,195 [1999], lv denied 93 NY2d 1017 [1999]; People v Bernard, 237AD2d 210, 210 [1997], lv denied 90 NY2d 855 [1997]; see also People vMcLeod, 281 AD2d 746, 747 [2001], lv denied 96 NY2d 921 [2001]).Inasmuch as the overwhelming evidence of defendant's guilt was established by thetestimony of other witnesses, the verdict did not turn solely or even predominately on thetestimony of the [*2]subject witness (see People v Johnson, 107AD3d 1161, 1166 [2013], lv denied 21 NY3d 1075 [2013]; People v Phillips, 55 AD3d1145, 1149 [2008], lv denied 11 NY3d 899 [2008]; People v Tutt,305 AD2d 987, 987 [2003], lv denied 100 NY2d 588 [2003]). As the courtproperly observed, a significant portion of the subject witness's testimony wascumulative and, inasmuch as the relevant issue was defendant's constructive possessionrather than whether he had personally brought the drugs into the apartment at someearlier time, we reject defendant's contention that the witness's testimony was critical tothe verdict because he was the only individual to "directly link" defendant to the drugs.Present—Whalen, P.J., Peradotto, Lindley, DeJoseph and NeMoyer, JJ.