| People v Pierre |
| 2018 NY Slip Op 04603 [162 AD3d 1325] |
| June 21, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Keion M. Pierre, Appellant. |
Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), for appellant.
John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Otsego County (Lambert, J.),rendered June 27, 2016, upon a verdict convicting defendant of the crimes of criminal possessionof a controlled substance in the third degree (two counts) and criminal possession of a controlledsubstance in the fifth degree.
Defendant was charged by indictment with criminal possession of a controlled substance inthe third degree (two counts) and criminal possession of a controlled substance in the fifthdegree. Following a jury trial, he was convicted as charged and sentenced as a second felonyoffender to an aggregate prison term of 10 years plus three years of postrelease supervision.Defendant appeals.
Defendant asserts that his convictions are against the weight of the evidence, arguing that theverdict was based on speculation and the People failed to prove that he possessed narcotics. Attrial, a police officer testified that he was asked to conduct a welfare check at the home ofdefendant's wife in the City of Oneonta, Otsego County to ensure that defendant—whowas the subject of an order of protection in the wife's favor—was not present. When theofficer arrived, the wife, who was outside, told the officer that defendant was not there. However,as the officer was leaving, he saw a man behind the house, partially inside the open door of avehicle. The officer approached and recognized the man as defendant. Planning to make anarrest, the officer told defendant that he was violating the order of protection and directed him toturn [*2]around and place his hands behind his back. Afterhesitating briefly, defendant fled, running across the yard and alongside the residence to thestreet. The officer radioed for assistance as he pursued defendant, who turned several corners atintersecting streets. As defendant ran around another corner, the officer—who was then 10to 15 yards behind—saw him trip, fall to the ground, get up again and then continue to runbeyond the corner house, where the officer was unable to see him for a few seconds. When theofficer came around the corner, he saw defendant lying on the front lawn of that house,apparently having fallen a second time. The officer tackled him and held him down untilassistance arrived. Defendant was taken into custody and was found to be carrying a smallquantity of marihuana, about $100 in cash and a pocket-sized digital scale.
A narcotics detective who arrived at the scene a few moments later noticed a clear plastic baglying in an open area of the lawn, 10 to 15 feet from where defendant had been tackled and takeninto custody. Upon closer observation, he saw that the bag held small plastic packages of whatappeared to be heroin and crack cocaine. The officer who had pursued defendant determined thatthe bag was lying in the path that defendant had traveled as he fled, in the same spot where hehad fallen for the first time. Later examination and testing revealed that the bag contained fourpackages of crack cocaine and 24 glassine envelopes of heroin, with a total street value ofapproximately $1,400. Based upon his training and experience, the detective testified that thepresence of two different kinds of drugs, their quantity and value, the manner in which they werepackaged and the fact that the packages were closed and had not been partially used indicatedthat the drugs had been packaged for sale rather than for personal use. He further confirmed thatthe digital scale that was found in defendant's pocket was of a type that, in his experience, wascommonly used to weigh narcotics that were being separated for sale.
The officers stated that the bag did not appear to have been on the lawn for long, as it wasclean, with no dirt or grass clippings on top of it, and it was lying on top of the grass rather thanpressed into the soil. Further investigation revealed that the house where defendant had fallenbelonged to a retired teacher and his wife, who had resided there for more than 20 years. Theofficers described the house as being well-maintained with a recently mowed lawn, stating that itwas "pristine" and "one of the nicest yards on the street," with no debris other than the plasticbag. The officers further stated that they were not aware of any drug activity on the street wherethis house was located, which they described as a "pretty nice neighborhood" where manyfamilies resided. The officer who had pursued defendant acknowledged on cross-examination,however, that he was aware of prior drug activity involving residents of the house wheredefendant's wife lived, about a block and a half away.
The detective stated that no fingerprint analysis was done on the bag, explaining thatfingerprint oil does not adhere well to plastic and it was "almost [100] percent unlikely" that anyfingerprints would have been obtained. The officers likewise conducted no DNA analysis. Theofficer who pursued defendant further acknowledged that he did not see defendant drop anythingwhen he fell. Relying on these alleged flaws, the circumstantial nature of the evidence and thefact that defendant was not carrying the drugs when he was found, defendant argues that therewas a reasonable possibility that someone else placed or dropped the drugs on the lawn and thatthey did not belong to defendant, and that the verdict was therefore based upon speculation.
Had the jury accepted this argument, a different verdict would not have been unreasonable.Thus, this Court must "weigh the relative probative force of conflicting testimony [*3]and the relative strength of conflicting inferences that may be drawnfrom the testimony" to determine whether the jury gave the evidence the weight that it shouldhave been accorded (People vScippio, 144 AD3d 1184, 1185 [2016] [internal quotation marks and citations omitted],lv denied 28 NY3d 1150 [2017]; accord People v Cruz, 152 AD3d 822, 823 [2017], lvdenied 30 NY3d 1018 [2017]). "We will not distinguish between direct and circumstantialevidence in assessing its weight" (People v Stanfield, 7 AD3d 918, 920 [2004] [citations omitted]; see People v Tunstall, 149 AD3d1249, 1252 [2017], lv denied 30 NY3d 1023 [2017]). Deferring to the jury's factualdeterminations and credibility assessments, and viewing the evidence in a neutrallight—including defendant's flight, the condition, quantity and value of the drugs, thenature of the location where they were found, their proximity to defendant, and his possession ofthe digital scale—we do not find that the verdict was against the weight of the evidence(see People v Graham, 138 AD3d1242, 1243 [2016], lv denied 28 NY3d 930 [2016]; People v Mateo, 13 AD3d 987,988 [2004], lv denied 5 NY3d 883 [2005]; People v Buchanan, 95 AD3d 1433, 1434-1435 [2012], lvdenied 22 NY3d 1039 [2013]).
Egan Jr., Lynch, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.