| People v Palin |
| 2018 NY Slip Op 01092 [158 AD3d 936] |
| February 15, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v HectorPalin, Appellant. |
Aaron A. Louridas, Delmar, for appellant.
P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), forrespondent.
Clark, J. Appeals (1) from a judgment of the Supreme Court (McDonough, J.), renderedSeptember 24, 2014 in Albany County, upon a verdict convicting defendant of the crime ofcriminal possession of marihuana in the second degree, and (2) by permission, from an order ofsaid court, entered June 10, 2016 in Albany County, which denied defendant's motion pursuant toCPL 440.20 to set aside the sentence, without a hearing.
In May 2013, the City of Albany Police Department received a community complaintconcerning alleged illicit drug activity occurring at a residence located at 316 Second Avenue inthe City of Albany (hereinafter the residence). In response, the police, using a confidentialinformant (hereinafter CI), orchestrated a controlled drug buy during which the CI purchasedmarihuana from defendant at the front door of the residence. As a result, the police procured andexecuted a search warrant of the residence, whereupon they discovered defendant, among others,and seized personal effects owned by defendant and 8.8 ounces of marihuana located in the frontbedroom. The police also seized 12.2 ounces of marihuana and three scales that were found in anunlocked cabinet in the residence's kitchen. Thereafter, defendant was indicted for criminalpossession of marihuana in the second degree. He subsequently moved to suppress the physicalevidence that was seized during the search of the residence, claiming that the search warrant wasnot supported by probable cause and was defective. Following a hearing, Supreme Court, amongother things, denied that motion. At the [*2]conclusion of a jurytrial, defendant was convicted as charged and ultimately sentenced to 4
Initially, we are unpersuaded by defendant's contention that probable cause did not supportthe issuance of the search warrant because the reliability of the undisclosed CI was notadequately established. At the suppression hearing, Detective Brian Plante, who had applied forthe search warrant, testified that he prepared the application based upon the communitycomplaint, the controlled buy operation that was observed by another member of the policedepartment and his own audio surveillance of that controlled buy, made possible by the CIwearing a recording device. In our view, the visual and audio surveillance evidence of the CI'scontrolled buy of marihuana from defendant at the residence only days prior to the issuance ofthe warrant satisfies the reliability prong of the Aguillar-Spinelli test (see People v Cavallaro, 123 AD3d1221, 1222 [2014]; People vVargas, 72 AD3d 1114, 1115-1116 [2010], lv denied 15 NY3d 758 [2010]; People v Lamont, 21 AD3d 1129,1130-1131 [2005], lv denied 6 NY3d 835 [2006]; cf. People v Brandon, 133 AD3d 901, 902-903 [2015], lvdenied 27 NY3d 992 [2016]). Therefore, the search warrant was properly issued, and the trialcourt correctly denied defendant's motion to suppress.
Defendant contends that the People failed to prove that he had constructive possession of themarihuana seized in the residence and that the verdict is therefore not supported by legallysufficient evidence and is against the weight of the evidence. The legal standards for examiningthese contentions are well-established (see People v Bueno, 18 NY3d 160, 169 [2011]; People vBleakley, 69 NY2d 490, 495 [1987]; People v Byrd, 152 AD3d 984, 986 [2017]). As relevant here, "[a]person is guilty of criminal possession of marihuana in the second degree when he [or she]knowingly and unlawfully possesses . . . [the] substances containing marihuana andthe . . . substances are of an aggregate weight of more than sixteen ounces" (PenalLaw § 221.25). "Where, as here, the People proceed under the theory ofconstructive possession, the proof must establish that [a] defendant exercised dominion andcontrol over the property or the person who actually possessed the [property]" (People v Wilson, 100 AD3d 1045,1046 [2012] [internal quotation marks and citations omitted], lv denied 22 NY3d 998[2013]; see Penal Law § 10.00 [8]; People v Manini, 79 NY2d 561,573-575 [1992]; People v Leader,27 AD3d 901, 903 [2006]). "Constructive possession of the drugs . . . at issuemay be established through circumstantial proof[,] and any conflict in the evidence regarding adefendant's dominion and control over the drugs . . . in question . . .creates [an] issue[ ] of witness credibility, and the jury's determination in that regard must beaccorded great deference" (People vVictor, 139 AD3d 1102, 1105 [2016] [internal quotation marks, brackets and citationsomitted], lv denied 28 NY3d 1076 [2016]; see People v Garcia-Toro, 155 AD3d 1086, 1086-1087[2017]).
Here, the trial testimony given by members of the City of Albany Police Department whoobserved defendant's involvement in the controlled drug buy and who were involved with thesearch of the residence, along with the physical evidence obtained from that search, establishesdefendant's constructive possession of the marihuana in question. Plante's testimony establishedthat, a few days prior to the execution of the search warrant, defendant sold marihuana to the CIduring a controlled buy that was monitored by members of the City of Albany PoliceDepartment. Plante explained that, during the controlled buy, he personally observed defendantand the CI engage in a hand-to-hand exchange at the residence resulting in the CI buyingmarihuana. Plante described how, at the time that the residence was searched, law enforcementfound defendant's personal belongings in the front bedroom of the residence, including hisclothing, wallet and personal mail, as well as 8.8 ounces of marihuana in a [*3]backpack. The trial testimony further demonstrated that JosephPalin, defendant's brother, and Sayquon Kearney, defendant's friend, occupied the two remainingbedrooms in the residence, wherein the police discovered personal effects in their respectivebedrooms, as well as another 10.2 ounces of marihuana and, among other things, a bullet-proofvest in Kearney's bedroom. In addition to finding an operating surveillance camera installed inthe residence's living room window, the police discovered an additional 12.2 ounces ofmarihuana, "baggies," two digital scales, one triple-beam scale and $95 of US currency locatedwithin a kitchen cabinet. The trial testimony further established that marihuana residue wasobserved on the scales and that a marihuana odor existed in both the front bedroom and thekitchen. Also introduced at trial was a recorded jail phone call made by defendant following hisarrest in which he expressed concern that certain individuals would testify against him. Theforensic scientist who later conducted testing of the substance seized in the front bedroom andkitchen cabinet also testified that said substance tested positive for marihuana and had anaggregate weight in excess of 16 ounces.
For the defense, Kearney testified that it was he who possessed the marihuana recovered inthe residence, that defendant had no knowledge of the marihuana and that defendant, who was agood friend of his, stayed at the residence as an overnight guest five or six times over thetwo-month period in which Kearney rented the residence. Kearney acknowledged that anyone inthe residence could access the kitchen cabinet that contained the marihuana and other itemsseized by police. Defendant testified that he resided at another location, that he visited Kearneyregularly, that he did not sell marihuana to the CI or know of, or possess, the marihuana foundinside of the residence, notwithstanding acknowledging that he stayed at the residence on thedays that both the controlled buy and execution of the search warrant occurred. In our view, whenexamining the evidence in a light most favorable to the People, the verdict was supported bylegally sufficient evidence. The physical and testimonial evidence "went beyond defendant's merepresence in the residence at the time of the search" and permitted the jury to infer that defendanthad occupied the front bedroom and exercised dominion and control over the marihuana found inboth the front bedroom and the kitchen cabinet of the residence (People v McGough, 122 AD3d1164, 1166 [2014], lv denied 24 NY3d 1220 [2015]; see People v Victor,139 AD3d at 1105-1106; People vPerry, 116 AD3d 1253, 1255 [2014]; People v David, 234 AD2d 787, 789[1996], lv denied 89 NY2d 1034 [1997]). Moreover, the fact that marihuana was found inthe kitchen, an area that other members of the residence could access, does not preclude a findingof constructive possession, as such possession may be joint, and all of the items in the kitchenwere readily accessible and available to defendant (see People v Gaston, 147 AD3d 1219, 1219-1220 [2017];People v McGough, 122 AD3d at 1166-1167; People v Perry, 116 AD3d at1255).
With regard to the weight of the evidence, since a different verdict would not have beenunreasonable, we must, "like the trier of fact below, weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may be drawn fromthe testimony" (People v Bleakley, 69 NY2d at 495 [internal quotation marks and citationomitted]). Upon exercising our factual review power, and according due deference to the jury'sopportunity to view and assess defendant's credibility, as well as that of his witness Kearney, wefind that, when viewing the evidence in a neutral light, the verdict was not against the weight ofthe evidence (see People v Gaston, 147 AD3d at 1220; People v Victor, 139AD3d at 1105-1107; People v McGough, 122 AD3d at 1166-1167; People vPerry, 116 AD3d at 1255).
Defendant also challenges Supreme Court's Molineux/Sandoval ruling, whichpermitted testimony about the uncharged controlled buy for the purposes of demonstratingknowledge and possession of the marihuana seized in the residence and allowed the People toinquire at trial about two prior drug-related felony convictions. "Under our well-establishedMolineux rule, 'evidence of a defendant's uncharged crimes or prior misconduct is notadmissible if it cannot [*4]logically be connected to some specificmaterial issue in the case, and tends only to demonstrate the defendant's propensity to commit thecrime charged' " (People vLeonard, 29 NY3d 1, 6 [2017], quoting People v Cass, 18 NY3d 553, 559 [2012]; see People v Inman, 151 AD3d1283, 1284 [2017], lv denied 30 NY3d 950 [2017]; People v McCommons, 143 AD3d1150, 1153 [2016], lv denied 29 NY3d 999 [2017]). Evidence of prior criminalconduct may be admitted, however, where it falls within at least one of the "recognizedMolineux exceptions—motive, intent, absence of mistake, common plan orscheme and identity—or where such proof is inextricably interwoven with the chargedcrimes, provides necessary background or completes a witness's narrative" (People v Ward, 141 AD3d 853,860 [2016] [internal quotation marks and citations omitted]; see People v Leonard, 29NY3d at 6; People v Molineux, 168 NY 264, 293 [1901]; People v Anthony, 152 AD3d1048, 1050-1051 [2017], lv denied 30 NY3d 978 [2017]).
Here, testimonial evidence of defendant's hand-to-hand exchange with the CI during thecontrolled buy was relevant to the question of whether defendant had knowledge of themarihuana in the residence (see People v Satiro, 72 NY2d 821, 822 [1988]; People vBright, 210 AD2d 244, 244 [1994], lv denied 85 NY2d 936 [1995]). As defendant'sintent was put into issue by his assertion that he did not live at the residence and had noknowledge of the presence of marihuana therein, we find that Supreme Court did not abuse itsdiscretion by allowing testimony concerning the controlled buy for the limited purpose ofestablishing that defendant intended to possess marihuana and that he exercised dominion andcontrol over the marihuana in question (see People v Satiro, 72 NY2d at 822; People v Price, 14 AD3d 718, 719[2005], lv denied 4 NY3d 856 [2005]; People v Wright, 5 AD3d 873, 876 [2004], lv denied 3NY3d 651 [2004]; People v Brown, 221 AD2d 822, 823 [1995]; People vCarpenter, 187 AD2d 519, 520-521 [1992], lv denied 81 NY2d 838 [1993], lvdenied upon reconsideration 81 NY2d 1012 [1993]). Moreover, Supreme Court limited thepotential for any undue prejudice by instructing the jury not to infer that defendant had apropensity for criminality based upon the fact that he was involved with the controlled drug buyand by instructing the jury that such testimony was offered for consideration of the sole issue ofwhether defendant knowingly possessed the marihuana that was found in the residence (seePeople v McCommons, 143 AD3d at 1153; People v Brown, 221 AD2d at 823).
As to Supreme Court's Sandoval compromise, of the 12 prior convictions that thePeople sought to question defendant about, the court ruled that the People could only inquireabout defendant's two most recent felony convictions from 2008, without specifying the nature ofthose felonies or the underlying charges or crimes. By not allowing any inquiry into theunderlying facts or crimes, the court appropriately balanced the probative value of these two priorconvictions against the risk of prejudice to defendant, and we discern no abuse of discretion inthe court's determination (see People vKeener, 152 AD3d 1073, 1074 [2017]; People v Gethers, 151 AD3d 1398, 1401 [2017], lv denied30 NY3d 980 [2017]; People vCooley, 149 AD3d 1268, 1270-1271 [2017], lv denied 30 NY2d 979[2017]).
Finally, we do not find defendant's sentence to be harsh or excessive, and the record providesno support for his claim that he was punished for exercising his right to trial (see People v Lee, 129 AD3d 1295,1300 [2015], lv denied 27 NY3d 1001 [2016]; People v Nichol, 121 AD3d 1174, 1178 [2014], lv denied25 NY3d 1205 [2015]). Given defendant's lack of remorse and extensive criminal history,including drug-related offenses and a prior violent felony, spanning well over 20 years, weperceive no abuse of discretion or any extraordinary circumstances that would warrantmodification of the sentence (see Peoplev Slaughter, 150 AD3d 1415, 1418 [2017]; People v Lee, 129 AD3d at 1300; People v Burroughs, 64 AD3d894, 898-899 [2009], lv denied 13 NY3d 794 [2009]). Further, as defendant receivedthe requested relief in his CPL 440.20 motion, we perceive no error in County Court's denial ofsaid motion [*5]without a hearing (see People v Sparks, 105 AD3d1073, 1074 [2013], lv denied 21 NY3d 1010 [2013]; People v Clayton, 38 AD3d 1131,1131-1132 [2007], lv denied 9 NY3d 841 [2007]). Defendant's remaining contentions, tothe extent not specifically addressed, have been examined and found to be lacking in merit.
Garry, P.J., Mulvey, Aarons and Rumsey, JJ., concur. Ordered that the judgment and orderare affirmed.