| People v Frederick |
| 2017 NY Slip Op 05917 [152 AD3d 1242] |
| July 27, 2017 |
| Appellate Division, Fourth Department |
[*1](July 27, 2017)
| The People of the State of New York, Respondent, v EmmanuelA. Frederick, Appellant. |
Jarrod W. Smith, Esq., P.L.L.C., Jordan (Jarrod W. Smith of counsel), fordefendant-appellant.
Emmanuel A. Frederick, defendant-appellant pro se.
Gregory S. Oakes, District Attorney, Oswego (Amy L. Hallenbeck of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Donald E. Todd, J.), rendered July28, 2015. The judgment convicted defendant, upon a jury verdict, of criminal possession of acontrolled substance in the third degree (three counts).
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice by reducing the sentence imposed to three concurrent,determinate terms of incarceration of four years, with three years of postrelease supervision, andas modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofthree counts of criminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1], [12]). Defendant was sentenced as a second felony drug offender tothree concurrent, determinate terms of incarceration of nine years, with three years of postreleasesupervision.
Defendant contends that his motion to suppress should have been granted because the searchwarrant issued on July 15 did not describe with sufficient particularity the location where thedrugs at issue were subsequently discovered, i.e., a shed on a lot neighboring defendant'sproperty. We reject that contention and conclude that the description in the search warrant wassufficient to authorize the executing officers to search the neighboring shed (see generally People v Cook, 108AD3d 1107, 1108 [2013], lv denied 21 NY3d 1073 [2013]).
We reject defendant's further contention that he was unduly prejudiced by County Court'sMolineux ruling. Here, the evidence of defendant's prior conviction of attempted criminalpossession of a controlled substance in the third degree (Penal Law §§ 110.00,220.16 [12]) was properly admitted in evidence to demonstrate defendant's identity and knowingpossession inasmuch as defendant committed the prior crime "by using a distinctive and uniquemodus operandi, which was sufficiently similar to the manner in which the crimes herein werecommitted to be probative of defendant's identity as the perpetrator" (People v Curry, 82 AD3d 1650,1650 [2011], lv denied 17 NY3d 805 [2011]; see generally People v Molineux,168 NY 264, 293-294 [1901]). The probative value of the evidence also outweighed itsprejudicial effect (see People v Wemette, 285 AD2d 729, 731 [2001], lv denied97 NY2d 689 [2001]), and "the court's limiting instruction minimized any prejudice todefendant" (People v Washington,122 AD3d 1406, 1408 [2014], lv denied 25 NY3d 1173 [2015]). We agree withdefendant that the court erred in admitting the conviction in evidence to establish his intent tocommit the crimes charged herein, but we conclude that the error is harmless (see generallyPeople v Crimmins, 36 NY2d 230, 241-242 [1975]).
Contrary to defendant's contention, viewing the evidence in light of the elements of thecrimes as charged to the jury (see Peoplev Danielson, 9 NY3d 342, 349 [2007]), we conclude that the [*2]verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). We agree with defendant, however, that thesentence is unduly harsh and severe under the circumstances of this case, and we thereforemodify the judgment as a matter of discretion in the interest of justice by reducing the sentence tothree concurrent, determinate terms of incarceration of four years, with three years of postreleasesupervision (see generally CPL 470.15 [6] [b]). We have considered defendant'scontentions in his pro se supplemental brief and conclude that none warrants reversal or furthermodification of the judgment. Present—Carni, J.P., Lindley, DeJoseph, Curran andTroutman, JJ.