| People v Garcia-Toro |
| 2017 NY Slip Op 07634 [155 AD3d 1086] |
| November 2, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Rudy Garcia-Toro, Appellant. |
Timothy S. Brennan, Schenectady, for appellant.
Kelli P. McCoski, District Attorney, Fonda (Pamela A. Ladd of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Montgomery County (Catena, J.),rendered June 20, 2014, upon a verdict convicting defendant of the crime of criminal possessionof a controlled substance in the third degree (two counts).
In November 2013, defendant's parole officer discovered heroin during a routine visit todefendant's home. Thereafter, defendant was charged with two counts of criminal possession of acontrolled substance in the third degree. Following a jury trial, defendant was convicted ascharged and sentenced, as a second felony offender, to an aggregate prison term of eight yearsfollowed by three years of postrelease supervision. Defendant appeals.
We find no merit in defendant's contentions that his convictions were not supported bylegally sufficient evidence and were against the weight of the evidence in that the People failed toprove his possession of the heroin and his intent to sell it. Penal Law § 220.16prohibits knowingly possessing "a narcotic drug with intent to sell it" or a mixture "containing anarcotic drug" weighing "one-half ounce or more" (Penal Law § 220.16 [1]; [12];see People v Torres, 146 AD3d1086, 1087 [2017], lv denied 29 NY3d 1087 [2017]). Constructive possession maybe established by circumstantial evidence and "any conflict in the evidence regarding adefendant's dominion and control over the [drugs] in question . . . creates issues ofwitness credibility, and the jury's determination in that regard must be accorded great deference"(People v Crooks, 129 AD3d1207, 1208-1209 [2015] [internal quotation marks, brackets and citation omitted],affd 27 NY3d 609 [2016]; seePeople v Glover, 23 AD3d 688, 689 [2005], lv denied 6 NY3d 776 [2006])."Generally, possession [alone] suffices to permit the inference that the possessor knows what he[or she] possesses, especially, but not exclusively, if it is in his [or her] hands . . . oron his [or her] premises" (People v Reisman, 29 NY2d 278, 285 [1971] [citationsomitted], cert denied 405 US 1041 [1972]; accord People v Jimenez, 148 AD3d 723, 725 [2017], lvdenied 29 NY3d 1081 [2017]; seePeople v VanVorst, 118 AD3d 1035, 1036 [2014]). As to intent to sell, the jury issimilarly "allowed to infer, based on the amount of drugs at issue, that the defendant possessedthem for the purpose of financial gain, rather than personal consumption" (People vCrooks, 129 AD3d at 1209; seegenerally People v Salaam, 46 AD3d 1130, 1131 [2007], lv denied 10 NY3d 816[2008]).
Here, defendant's parole officer testified that on the day in question, he visited defendant'sresidence at approximately noon and noted an 11-inch by 15-inch package addressed todefendant in the mailbox. Shortly thereafter, defendant arrived home on his lunch break. Theparole officer testified that he handed the package to defendant, who explained that the senderwas a friend in New York City, and they began a walkthrough of the apartment.[FN*] He took the package back fromdefendant during the course of the walkthrough and asked for more information about the sender.Defendant stated that this individual would send him letters, pictures and clothing. When askedto open the package, defendant explained that it was for his girlfriend and that he wanted to waitfor her to arrive. The parole officer explained that he could either keep the package until thegirlfriend arrived or leave the package with defendant after first conducting a dog sniff. At thispoint, defendant agreed to open the package.
Defendant opened the package and removed a sealed envelope from inside of a magazine.According to the parole officer, defendant became anxious when asked to open the envelope.Defendant then opened the envelope and removed $180 in cash and a plastic bag containing "anoff white brown substance." When asked, defendant indicated that he thought the substanceweighed "about 10 grams." It is undisputed that defendant repeatedly asked to "flush" thecontents of the bag. The girlfriend's nephew, who was in defendant's apartment but did notpresent himself, testified that he heard defendant state, "It was not mine, not mine." The paroleofficer took possession of the bag and called the police, and defendant was arrested. Defendanttestified, in contrast to the testimony of the parole officer, that the package was already openwhen he first arrived, and that he never held the package at any point in time.
The forensic scientist who later conducted laboratory testing of the substance testified that ittested positive for heroin and weighed 19.5 grams. Both the parole officer and the detectiveassigned to the case opined, without objection and to a reasonable degree of professionalcertainty, that the amount of heroin recovered was consistent with resale and not personal use.Viewing this evidence in the light most favorable to the People, we find a "valid line of reasoningand permissible inferences which could lead a rational person to the conclusion reached by thejury" (People v Bleakley, 69 NY2d 490, 495 [1987]; see People v Sanchez, 86NY2d 27, 34 [1995]; People vBellamy, 118 AD3d 1113, 1114 [2014], lv denied 25 NY3d 1159 [2015]).Further, according great deference to the jury's credibility assessments, we do not find that theverdict was against the weight of the evidence (see People v Nichol, 121 AD3d 1174, 1177-1178 [2014], lvdenied 25 NY3d 1205 [2015]).
Defendant next contends that the items seized from the package were the fruits of an illegalsearch in violation of his 4th Amendment rights and should have been suppressed. However,County Court properly denied defendant's motion without a hearing as his omnibus motionasserted only boilerplate allegations and failed to "allege a ground constituting legal basis for themotion" (CPL 710.60 [3] [a], [b]; seePeople v Curtis, 144 AD3d 1199, 1200 [2016]; People v Godallah, 132 AD3d 1146, 1148-1149 [2015]). In anyevent, upon this record we find that the evidence was admissible (see People v Walker, 80 AD3d793, 794 [2011]; People vBurry, 52 AD3d 856, 858-859 [2008], lv dismissed 10 NY3d 956 [2008]).
Defendant contends that County Court erred in permitting testimony regarding two priorconvictions, one in 2004 for criminal sale of heroin in the fifth degree and another in 2006 forassault in the first degree. We disagree. Following a Sandoval hearing, the People werepermitted to inquire whether defendant had been convicted of a felony on the specific date withregard to the 2004 drug conviction and were permitted a full inquiry into the assault conviction.In this regard, review of the hearing record reveals that the court, in exercising its discretion,appropriately weighed the various factors, the probative value and the risk of unfair prejudice todefendant (see People v Hayes, 97 NY2d 203, 207 [2002]; People v Richins, 29 AD3d 1170,1172 [2006], lv denied 7 NY3d 817 [2006]; People v Ebron, 275 AD2d 490,491-492 [2000], lv denied 95 NY2d 934 [2000]). Further, the jury was given anappropriate limiting instruction (see People v Miller, 91 NY2d 372, 378 [1998]; People v Watson, 150 AD3d 1384,1386 [2017], lv denied 29 NY3d 1135 [2017]).
At trial, defense counsel elicited testimony regarding the 2004 drug conviction uponcross-examination of the detective. The Sandoval compromise was revisited as to the2004 conviction thereafter, on the People's request. Defense counsel indicated that he wouldcontinue to explore the conviction upon direct examination of defendant, and the court thuspermitted the People to conduct a full inquiry. By failing to object, defendant failed to preservehis claim that the Sandoval modification was "an improvident exercise of discretion" (People v Anthony, 74 AD3d 1795,1796 [2010], lv denied 15 NY3d 849 [2010]; see People v Cantave, 21 NY3d 374, 378-379 [2013]; see also People v Henry, 129 AD3d1334, 1335-1336 [2015], lv denied 26 NY3d 930 [2015]; People v Perez, 120 AD3d 514,514 [2014], lv denied 24 NY3d 963 [2014]).
We find no merit in defendant's contention that his counsel's actions related to the 2004 drugconviction testimony constituted ineffective assistance. To prevail on this claim, defendant wasrequired to demonstrate that he was "deprived of a fair trial by less than meaningfulrepresentation" (People v Gokey,134 AD3d 1246, 1246-1247 [2015] [internal quotation marks and citation omitted], lvdenied 27 NY3d 1069 [2016]). Here, counsel's questions to the detective were apparentlypart of a strategy to establish the remoteness of defendant's prior drug conviction. Althoughdefendant argues that his counsel could have accomplished this goal within the initialSandoval compromise, "a simple disagreement with strategies, tactics or the scope ofpossible cross-examination, weighed long after the trial, does not suffice" (id. at 1247[internal quotation marks and citation omitted]).
Defendant further contends that he received ineffective assistance in that his counsel failed toobject to the expert testimony of the parole officer and the detective that the quantity of heroinrecovered was consistent with an intent to sell. We disagree. Ineffective assistance does notsimply arise from counsel's failure to "make a[n] . . . argument that has little or nochance of success" (People v Stultz,2 NY3d 277, 287 [2004]; accordPeople v Caban, 5 NY3d 143, 152 [2005]). As pertinent here, a trial court "hasconsiderable discretion in determining the admissibility of expert testimony" (People v Lamont, 21 AD3d 1129,1132 [2005], lv denied 6 NY3d 835 [2006]; accord People v Lupo, 92 AD3d 1136, 1138 [2012]). Both theparole officer and the detective testified as to their respective relevant work experience and theirfamiliarity with the trafficking of heroin (see People v Hicks, 2 NY3d 750, 751 [2004]). Upon this basis bothopined that the quantity of the heroin recovered was consistent with an intent to sell; thistestimony was admissible and defense counsel had no basis to object (see People v Hicks,2 NY3d at 751; People v Berry, 5AD3d 866, 867 [2004], lv denied 3 NY3d 637 [2004]; People v Wright, 283AD2d 712, 713-714 [2001], lv denied 96 NY2d 926 [2001]).
Finally, we do not find defendant's sentence to be harsh and excessive. Defendant, a secondfelony offender, was on parole supervision at the time of the instant offense. He was subject to adeterminate sentence of between 6 and 15 years on both convictions and received a sentence wellbelow the statutory maximum (see Penal Law § 70.70 [4] [b] [i]).Accordingly, our review of the record reveals no abuse of discretion or any extraordinarycircumstances warranting a reduction of the sentence in the interest of justice (see People v Slaughter, 150 AD3d1415, 1418 [2017]).
Peters, P.J., Rose, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:A subsequent search could notdetermine the validity of the sender's address.