| People v Brown |
| 2018 NY Slip Op 05230 [163 AD3d 1170] |
| July 12, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Dwuane N. Brown, Appellant. |
Tracy Donovan-Laughlin, Oneonta, for appellant, and appellant pro se.
Kirk O. Martin, District Attorney, Owego, for respondent.
Pritzker, J. Appeal from a judgment of the County Court of Tioga County (Keene, J.),rendered March 7, 2016, upon a verdict convicting defendant of the crimes of criminal sale of acontrolled substance in the third degree, criminal possession of a controlled substance in the thirddegree, criminal possession of a controlled substance in the fourth degree and criminalpossession of a weapon in the third degree.
Defendant was charged, in an eight-count indictment, with numerous drug and weaponscrimes that arose out of allegations that defendant sold heroin to a confidential informant(hereinafter CI) as part of a controlled buy operation. Based upon the CI's identification ofdefendant from a photo array as the person who sold her heroin, police obtained a warrant fordefendant's arrest. In executing the warrant at the residence believed to be defendant's, policereceived permission to search the apartment from the legal tenant, who also informed police thatdefendant was upstairs. Police thereafter found a handgun and, after obtaining an additionalwarrant, found, among other things, a pistol, ammunition, heroin, scales, 384 glassine envelopes,packaging material and a hypodermic needle. Following a jury trial, defendant was convicted ofthe crimes of criminal sale of a controlled substance in the third degree, criminal possession of acontrolled substance in the third degree, criminal possession of a controlled substance in thefourth degree and criminal possession of a weapon in the third degree. For the drug convictions,County Court sentenced defendant, as a second felony offender, to an aggregate prison term of 11years, with three years of postrelease supervision. For the weapon conviction, defendant wassentenced to a prison term of 2 to 4 years, to run consecutively to the sentences for the drug [*2]convictions. Defendant now appeals.
Defendant contends that his convictions are against the weight of the evidence. At trial, theCI testified that she contacted Dakota Anthony for the purposes of obtaining defendant's contactinformation and that she communicated through Anthony to get to defendant. The CI alsotestified that she was working with the police who took her to a store in the Village of Waverly,Tioga County. Defendant and Anthony arrived in the parking lot of the store in a vehicle drivenby defendant. The CI testified that when she got in the car, the drugs were passed from defendantto Anthony and then to the CI, and then the money was passed from the CI to Anthony and thento defendant. After the controlled buy, the CI was taken to the police station where she gave thepackets of drugs that she had purchased to the police. Anthony also testified and largelycorroborated the CI's testimony of the controlled buy.
Brian West, a police officer, also testified regarding the controlled buy and subsequent searchof 5 Lincoln Street in Waverly where he found, among other things, a handgun with ammunitionin the magazine, 384 glassine envelopes and digital scales. Julie Romano, a forensic scientistwith the State Police, testified that those envelopes contained heroin. According to Romano,there was an aggregate weight of greater than one eighth of an ounce.
Jamie Trout, the legal tenant of 5 Lincoln Street, testified that he lived there with his wife,and that defendant stayed at their house about five nights a week. Trout testified that defendantwould bring heroin into the house in small white wax paper bags. Trout further testified that hebelieved a jacket found in the laundry room belonged to defendant and that the heroin packetsfound inside the jacket did not belong to Trout. Trout's spouse also testified that the jacket foundin the laundry room belonged to defendant and that, prior to the police arriving, defendant was inthe laundry room for at least a minute before running upstairs.
Defendant's contention that the verdict was against the weight of the evidence largely centerson the unreliable nature of several of the People's witnesses. Here, the jury chose to credit thetestimony of law enforcement witnesses, the CI, Trout, Trout's spouse and Anthony.Accordingly, viewing the evidence in a neutral light, and affording the jury due deference onmatters of credibility determinations, we find that defendant's convictions were not against theweight of the evidence (see People vMiller, 160 AD3d 1040, 1043 [2018]; People v Chatham, 55 AD3d 1045, 1046 [2008], lv denied14 NY3d 839 [2010]).
Finally we note that County Court erred in sentencing defendant for convictions of twocounts of criminally using drug paraphernalia in the second degree, as defendant was acquitted ofthese counts of the indictment. Therefore, these sentences must be vacated.
We have examined the arguments raised in defendant's pro se brief and found them to belacking in merit.
Egan Jr., J.P., Lynch, Mulvey and Aarons, JJ., concur. Ordered that the judgment ismodified, on the law, by vacating the sentences imposed on two counts of criminally using drugparaphernalia in the second degree and, as so modified, affirmed.