| People v Roulhac |
| 2018 NY Slip Op 07367 [166 AD3d 1066] |
| November 1, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Vincent Roulhac, Appellant. |
Robert Gregor, Lake George, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jeffrey Kehm of counsel), forrespondent.
McCarthy, J.P. Appeal from a judgment of the County Court of Clinton County(Ryan, J.), rendered June 9, 2016, upon a verdict convicting defendant of the crime ofcriminal possession of a controlled substance in the third degree (two counts).
Defendant was a passenger in a vehicle that a state trooper stopped for a trafficviolation in Essex County. After the driver consented to a search of the car, defendantadvised the trooper that there was marihuana in the glove box and it belonged to him.The trooper recovered that marihuana after his K-9 dog alerted on the glove box. Thedog then alerted on the passenger seat. When a search of that seat, defendant and hisclothing did not reveal any drugs, the trooper and an investigator suspected thatdefendant had concealed drugs inside his body. They transported defendant to theirpolice barracks in Clinton County, obtained a search warrant to X-ray his body andtransported him to a hospital in Clinton County to execute that warrant. At the hospital,defendant informed the investigator that he had drugs concealed inside his anus andvoluntarily removed from that orifice a condom containing bags of heroin andcocaine.
A Clinton County indictment charged defendant with two counts of criminalpossession of a controlled substance in the third degree (one count pertaining to theheroin and one to the cocaine). Following a hearing on defendant's pretrial motion to,among other things, dismiss the indictment and suppress evidence, County Court deniedthe motion in its entirety. A jury convicted defendant as charged. The court sentencedhim to concurrent prison terms of nine years, followed by three years of postreleasesupervision. Defendant appeals.
The police had probable cause for defendant's arrest. At the hearing, both the trooperand defendant testified that defendant admitted possessing marihuana, which the trooperthen recovered. Defendant's unlawful possession of marihuana was committed in thetrooper's presence, giving probable cause for defendant's arrest (see People v Carter, 60 AD3d1103, 1105 [2009], lv denied 12 NY3d 924 [2009]; People v Nesbitt, 56 AD3d816, 818 [2008], lv denied 11 [*2]NY3d 928[2009]). It is irrelevant that the police and the People did not formally charge him withpossessing marihuana after discovering that he possessed narcotics. Furthermore, theK-9's alert and indication on the passenger seat, followed by a fruitless search of the seatand defendant's clothing, presented probable cause to suspect that defendant possesseddrugs in his body.
Defendant's challenge to the legal sufficiency of the evidence at trial is unpreservedfor our review because his trial motion for a directed verdict did not include thearguments that he now raises (see People v Hawkins, 11 NY3d 484, 492 [2008]; People v Taylor, 163 AD3d1275, 1275-1276 [2018]; People v Briggs, 129 AD3d 1201, 1202 [2015], lvdenied 26 NY3d 1038 [2015]). As the sufficiency of the trial evidence has not beenproperly challenged and it is, therefore, presumed legally sufficient, defendant isprecluded from challenging the legal sufficiency of the evidence that was presented tothe grand jury (see CPL 210.30 [6]; People v Dowling, 75 AD3d 838, 840 [2010], lvdenied 15 NY3d 952 [2010]; People v Folkes, 43 AD3d 956, 956 [2007], lvdenied 9 NY3d 1006 [2007]).
The verdict is not against the weight of the evidence. "A person is guilty of criminalpossession of a controlled substance in the third degree when he [or she] knowingly andunlawfully possesses . . . a narcotic drug with intent to sell it" (Penal Law§ 220.16 [1]). Defendant's own testimony that he placed 11 grams of heroinand 19 grams of cocaine in a condom, which he then secreted in his anus, established avoluntary act of possession of narcotics (see Penal Law§§ 15.00 [2]; 15.10; People v Perry, 67 AD3d 1046, 1048 [2009], lvdenied 14 NY3d 804 [2010]). Defendant testified that he was not employed, he didnot pay for the drugs but received them for free from his friends, and he possessed thedrugs for his own personal use. However, the People presented proof regarding a schemeto regularly use a transporter car preceded by a scout car, with each vehicle having atleast some connection to defendant, to make trips to New York City and immediatelyreturn to Clinton County. This implied that defendant was involved in trafficking drugsto Clinton County, where they could be sold for higher prices than in New York City.The investigator testified that the drugs that defendant possessed had a street value of$5,000, and the investigator had never encountered a person who secreted drugs insidehis or her body unless the possession was for purposes of sale. Accepting the jury'scredibility findings in favor of the police witnesses and against defendant, the weight ofthe evidence established defendant's possession with intent to sell the drugs (see People v Garcia-Toro, 155AD3d 1086, 1087-1088 [2017], lv denied 30 NY3d 1115 [2018]; People v Barton, 13 AD3d721, 723-724 [2004], lv denied 5 NY3d 785 [2005]; People vWright, 283 AD2d 712, 713 [2001], lv denied 96 NY2d 926 [2001]).
Although a defendant generally has the right to be tried in the county where thecrime was committed, "[v]enue is not an element of the offense" and "venueissues—which relate only to the proper place of trial, rather than to the power ofthe court to hear and determine the case—are waivable" (People vGreenberg, 89 NY2d 553, 555-556 [1997]; see People v Beauvais, 105 AD3d 1081, 1082 [2013]; People v Brown, 90 AD3d1140, 1141 [2011], lv denied 18 NY3d 922 [2012]; People v Hinds, 77 AD3d429, 430 [2010], lvs denied 15 NY3d 953, 955 [2010]; People v Banks, 38 AD3d938, 939 [2007], lv denied 9 NY3d 840 [2007]). By not requesting a jurycharge on Clinton County's geographical jurisdiction or venue, defendant waived anychallenge on that issue (see id.).
Defendant contends that he was deprived of the effective assistance of counsel due tocounsel's failure to raise the venue issue either in a pretrial motion to dismiss or at trial.Defendant asserts that Clinton County was not a proper venue because he was stopped inEssex County and entered Clinton County in police custody, making his presence andpossession of drugs in that county involuntary (see CPL 20.40 [1] [a]; Penal Law§ 15.10). Although counsel could have raised the venue issue—andassuming, without deciding, that such a motion would have beensuccessful—defendant has not demonstrated that counsel lacked strategic or otherlegitimate reasons not to raise that defense (see People v Wright, 160 AD3d 1110, 1112 [2018], lvdenied 31 NY3d 1154 [2018]; People v Rosario, 157 AD3d 988, 993-994 [2018], lvdenied 31 NY3d 1121 [2018]; People v Wright, 139 AD3d 1094, 1100-1101 [2016],lvs denied 28 NY3d [*3]939 [2016], 29 NY3d1089 [2017]). For example, a successful motion to dismiss due to lack of venue inClinton County may have led the People to file similar charges in Essex County, wherevenue would be proper, and counsel may have strategically determined that defendantwould fare better with a jury drawn from the county in which he lived, which was alsothe less rural of the two counties (compare Cornell v Kirkpatrick, 665 F3d 369,379-384 [2d Cir 2011]). To the extent that defendant complains about counsel pursuingthe defense that he possessed the drugs for personal use rather than with intent to sell,that was a potentially legitimate defense, which was consistent with defendant'stestimony, and we will not second-guess counsel's strategy in that regard (see People v Rotger, 129AD3d 1330, 1331 [2015], lvs denied 26 NY3d 1011 [2015], 27 NY3d 1005[2016]; People v Wicks, 73AD3d 1233, 1236 [2010], lv denied 15 NY3d 857 [2010]). Accordingly,defendant has not established that he was deprived of the effective assistance ofcounsel.
Lynch, Devine, Mulvey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.