| People v Durfey |
| 2019 NY Slip Op 01855 [170 AD3d 1331] |
| March 14, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Ryan M. Durfey, Appellant. |
Del Atwell, East Hampton, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (William D. VanDelinder of counsel), forrespondent.
Pritzker, J. Appeals (1) from a judgment of the County Court of Chemung County (Rich Jr.,J.), rendered January 27, 2017, upon a verdict convicting defendant of the crime of unlawfulmanufacture of methamphetamine in the third degree, and (2) from a judgment of said court,rendered April 14, 2017, which resentenced defendant.
Defendant was charged by indictment with unlawful manufacture of methamphetamine in thethird degree stemming from an unrelated search of defendant's family barn during which a statetrooper discovered several items that he believed to be associated with the manufacture ofmethamphetamine. Following a Huntley hearing and a jury trial, defendant was convictedas charged and ultimately sentenced to a prison term of 3
Defendant contends that the verdict was not supported by legally sufficient evidence and wasagainst the weight of the evidence in that the People failed to prove that he constructivelypossessed the contraband found in the barn. When reviewing a legal sufficiency claim, this Courtviews the evidence "in the light most favorable to the People and evaluate[s] whether there is anyvalid line of reasoning and permissible inferences which could lead a rational person to theconclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfythe proof and burden requirements for every element of the crime charged" (People v Haggray, 164 AD3d1522, 1524 [2018] [internal quotation marks and citations omitted], lv denied 32NY3d 1111 [2018]; see People vCroley, 163 AD3d 1056, 1056 [2018]). A weight of the evidence review requires thisCourt to review all of the credible evidence and determine whether a different conclusion wouldnot have been unreasonable (see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Briggs, 129 AD3d 1201,1204 [2015], lv denied 26 NY3d 1038 [2015]). Where a different conclusion would nothave been unreasonable, this Court must "weigh the relative probative force of conflictingtestimony and the relative strength of conflicting inferences that may be drawn from thetestimony" (People v Bleakley, 69 NY2d at 495 [internal quotation marks and citationomitted]; see People v Thorpe, 141AD3d 927, 929 [2016], lv denied 28 NY3d 1031 [2016]).
As relevant here, "[a] person is guilty of unlawful manufacture of methamphetamine in thethird degree when he or she possesses at the same time and location, with intent to use, orknowing that another intends to use each such product to unlawfully manufacture, prepare orproduce methamphetamine . . . [t]wo or more items of laboratory equipment andtwo or more precursors, chemical reagents or solvents in any combination" (Penal Law§ 220.73 [1]). Where, like here, a defendant is not found to be in physicalpossession of any of the seized items, "the People had to establish that [the] defendantconstructively possessed the items by showing that he [or she] exercised dominion or controlover the property by a sufficient level of control over the area in which the contraband [was]found" (People v Alberts, 161 AD3d1298, 1300 [2018] [internal quotation marks and citation omitted], lv denied 31NY3d 1114 [2018]; see People vPinkney, 90 AD3d 1313, 1314 [2011]). To determine constructive possession, courtsmay consider "the defendant's proximity to the contraband, whether the defendant had keys to thelocation where the contraband was found, whether the contraband was in plain view. . . and whether there is witness testimony that the contraband belonged to thedefendant" (People v Maricle, 158AD3d 984, 986 [2018]). "Exclusive access, however, is not required to sustain a finding ofconstructive possession" (People vVictor, 139 AD3d 1102, 1105 [2016], lv denied 28 NY3d 1076 [2016]).
The testimony at trial established that, Alex Krawczyk, a state trooper, was asked to report toan address located on Hall Road in the Town of Veteran, Chemung County (hereinafter theproperty) to assist in investigating a report of a stolen go-cart. Krawczyk testified that, at theproperty, there was a primary residence as well as two barns. Krawczyk explained that one of thebarns was closer to the residence and the road and that the other barn was further away from boththe residence and the road. When Krawczyk first arrived at the property, he parked in front of theresidence and did not see anyone, but after looking around, he saw defendant, who was talking toa police officer also investigating the missing go-cart, standing in front of the barn furthest fromthe road and the residence (hereinafter the barn). When Krawczyk joined the conversation,defendant verified that there was a go-cart in the barn and invited Krawczyk and the other policeofficer into the barn to look at the go-cart.
While in the barn, Krawczyk, who was "trained to identify possible meth-making materialsand possible meth labs," saw items that he believed to be associated with the manufacture ofmethamphetamine, including cut lithium batteries, and a plastic bottle with brownish fluid insidethat looked like exposed chemicals and a one-pot production of methamphetamine. Afterviewing these items, Krawczyk called Kevin Backer, another state trooper who was a member ofthe Contaminated Crime Scene Emergency Response Team, and requested that he come to theproperty. Krawczyk testified that it took Backer approximately 1
Backer testified that, upon his arrival, he looked around the barn and observed several itemsconsistent with the manufacture of methamphetamine, including the battery casings on the floorand a bottle of acid. Backer testified that he then called and requested a team to come to theproperty to assist with a search. Krawczyk testified that, after Backer called for assistance,Krawczyk detained defendant in his troop car and then proceeded to make contact withdefendant's father, mother and brother, who were all in the residence. During this time,defendant's father, who owned the property, gave verbal and written consent to search theproperty, including the barn. Backer testified regarding the search and all of the items ofcontraband that were seized from the barn as a result. In addition, Krawczyk testified that, afterobtaining consent to search from defendant's father, he brought defendant to the State Policebarracks where defendant was interviewed and ultimately signed a written statement. During theinterview, Krawczyk learned that defendant lived at the property on and off and that the HallRoad address was listed as his mailing address. Krawczyk also testified that defendant informedhim that he worked in the barn and had full access to it.
Viewing the evidence in a light most favorable to the People, we find that the testimony thatdefendant lived on the property, listed it as his mailing address, worked in the barn and wasfamiliar enough to know that a go-cart was inside the barn provided legally sufficient evidencethat defendant exercised dominion and control over the barn where the contraband was foundsuch that he constructively possessed the contraband (see People v Victor, 139 AD3d at1106; People v Miller, 13 AD3d890, 891 [2004]). As to weight of the evidence, it would not have been unreasonable for thejury to have acquitted defendant, as it could have found that defendant did not have dominion orcontrol over the barn because the testimony revealed that other people had access to the barn (see People v Graham, 138 AD3d1242, 1243 [2016], lv denied 28 NY3d 930 [2016]). However, viewing the foregoingevidence in a neutral light and deferring to the jury's credibility determinations, we do not findthat the verdict is against the weight of the evidence (see People v Cochran, 140 AD3d 1198, 1200 [2016], lvdenied 28 NY3d 970 [2016]; People v Graham, 138 AD3d at 1243).
To the extent that defendant is arguing that County Court erred in refusing to suppress hiswritten statement, we disagree. Where a defendant is read his or her rights from a preprinted cardprior to any questioning, a "defendant's unambiguous acknowledgment that he [or she]understood his [or her] rights and subsequent participation in answering . . .questions constitute[s] an implicit waiver of his [or her] Miranda rights" (People v Green, 141 AD3d 1036,1038 [2016], lv denied 28 NY3d 1072 [2016]; compare People v Adames, 121 AD3d 507, 512 [2014]). However,"where an improper, unwarned statement gives rise to a subsequent Mirandized statement as partof a 'single continuous chain of events,' there is inadequate assurance that the Mirandawarnings were effective in protecting a defendant's rights, and the warned statement must also besuppressed" (People v Paulman, 5NY3d 122, 130 [2005], quoting People v Chapple, 38 NY2d 112, 114 [1975]). Toestablish whether the "subsequent written statement was part of a single continuous chain ofevents requiring its suppression, courts look to numerous factors, including the time differentialbetween the Miranda violation and the subsequent admission; whether the same policepersonnel were present and involved in eliciting each statement; whether there was a change inthe location or nature of the interrogation; the circumstances surrounding the Mirandaviolation, such as the extent of the improper questioning; and whether, prior to theMiranda violation, the defendant had indicated a willingness to speak to police" (People v Harris, 141 AD3d 1024,1028-1029 [2016] [internal quotation marks, brackets and citation omitted]).
Here, defendant requested suppression of two statements, one oral and one written and, aftera Huntley hearing, County Court suppressed defendant's oral statement on the basis thatdefendant had not been given his Miranda warnings. However, the court found that therewas "more than sufficient attenuation" between that statement and a subsequent written statementand, as such, it did not suppress the written statement. The evidence at the Huntleyhearing established that the oral statement was made after Backer arrived at the property and firstsurveyed the barn. Krawczyk testified that he, defendant and Backer were walking up to the roadfrom the barn. Defendant was not handcuffed and had been cooperative since Krawczyk's arrivalat the scene that morning. While they were walking, Krawczyk asked defendant "what's reallygoing on in this barn" and "why [he was] on the [pseudoephedrine] logs so many times?"Krawczyk testified that he had learned about these logs from Backer. Defendant responded, "Idon't know . . . for a cook."
Once they got to the road, Krawczyk detained defendant in his troop car. Krawczyk testifiedthat, after he detained defendant, he left defendant alone in the troop car and went to speak withdefendant's father, mother and brother. After a while, Krawczyk returned to his car, entered thevehicle and immediately administered Miranda warnings to defendant. Krawczyk readthe warnings from a preprinted card and, after doing so, defendant responded that he understoodhis rights. Shortly thereafter, Krawczyk transported defendant to the barracks, which was a 20- to30-minute drive, during which Krawczyk did not question defendant. Upon arrival at thebarracks, defendant was brought to an interview room and Krawczyk asked him if he wanted togive his side of the story. The testimony established that this process involved Krawczyk askingquestions and defendant answering them while Krawczyk typed all of it on a computer. In theprocess, Krawczyk again administered Miranda warnings to defendant, which wereprinted on the written statement form. Krawczyk further testified that, after the statement wasgiven, defendant initialed next to each line of the Miranda warnings, and Krawczyk wentthrough every line of the statement with defendant, who signed under the Mirandawarnings and again at the end of the statement. Krawczyk's testimony established that defendantwas cooperative, relaxed and never attempted to interrupt or stop the process. Finally, a review ofdefendant's written statement establishes that Krawczyk's questions were primarily based on thecontraband that was in plain view in the barn. Defendant was also asked questions about hisname appearing on the pseudoephedrine log.[FN*]
This testimony established that defendant unambiguously acknowledged that he understoodhis Miranda rights because he responded affirmatively both times, initialed next to eachline of the Miranda warnings on the written statement and participated in answeringKrawczyk's questions, amounting to an implicit waiver of his Miranda rights (seePeople v Green, 141 AD3d at 1038). Further, the written statement was sufficientlyattenuated from the unwarned oral statement because the statements were not part of a singlecontinuous chain of events; defendant was transported to the barracks and questioned in aseparate environment and, during the course of this questioning, the oral statement was notexploited, as defendant was primarily questioned based on evidence that was in plain view, aswell as evidence that had been obtained independently of the unwarned oral statement (seePeople v Harris, 141 AD3d at 1028-1029; People v Cavanagh, 97 AD3d 980, 982 [2012], lv denied 19NY3d 1101 [2012]).
We also disagree with defendant's argument that he had a right to a Mapp hearing."The trial court 'may summarily deny [a] motion [to suppress evidence] if . . . [t]hemotion papers do not allege a ground constituting legal basis for the motion [or if the] swornallegations of fact do not as a matter of law support the ground alleged' " (People v Godallah, 132 AD3d1146, 1148 [2015], quoting CPL 710.60 [3] [a], [b]). In his request for a Mapphearing, defendant alleged that law enforcement unlawfully entered the property and, as such, allproperty seized in the search must be suppressed. However, rather than set forth facts supportingthis allegation, defendant acknowledged that his father was the property owner and that lawenforcement obtained consent from his father to search the premises and seize the propertytherein. Accordingly, County Court properly denied defendant's motion for a Mapphearing, as the motion "failed to set forth any sworn allegations of fact supporting the grounds forthe application" (People v Gilmore,72 AD3d 1191, 1192 [2010]; see CPL 710.60 [3] [b]; People v Mendoza, 82NY2d 415, 422 [1993]).
We are also unpersuaded by defendant's arguments that he did not receive the effectiveassistance of counsel. "For counsel to be effective, he or she must provide meaningfulrepresentation as shown by an examination of the totality of the evidence, facts and law" (People v Santos-Rivera, 86 AD3d790, 791 [2011] [internal quotation marks, brackets and citations omitted], lv denied17 NY3d 904 [2011]). Although defendant contends that his trial counsel failed to recognize theimpropriety of his incriminating statement, this contention is belied by the record, as counselappropriately requested a Huntley hearing and, in fact, was successful in havingdefendant's oral statement suppressed (see People v Dean, 122 AD3d 1004, 1005 [2014]). Moreover,defendant's contention that counsel failed to obtain a Mapp hearing is unpersuasive giventhat defendant invited Krawczyk into the barn and defendant's father signed a consent to search,rendering a Mapp hearing unnecessary (see People v Hogan, 26 NY3d 779, 787 [2016]; see generally People v Worthington,150 AD3d 1399, 1403 [2017], lv denied 29 NY3d 1095 [2017]). We also find nomerit in defendant's contention that counsel was ineffective for failing to address defendant'sAntommarchi rights, as defendant does not set forth, nor does the record reveal, anymaterial stage of the proceedings for which defendant was not present (see People vAntommarchi, 80 NY2d 247, 250 [1992]). Therefore, given that our review of the recordreveals that counsel filed an omnibus motion, familiarized himself with the relevant evidence,effectively cross-examined the People's witnesses at the Huntley hearing and at trial,advanced a cogent trial strategy, made relevant objections and made coherent opening andclosing statements, we find that defendant received meaningful representation (see People vHogan, 26 NY3d at 787; People v Dean, 122 AD3d at 1005).
Garry, P.J., Egan Jr., Lynch and Clark, JJ., concur. Ordered that the judgments areaffirmed.
Footnote *:The written statement containsone reference to the suppressed oral statement. Prior to trial, the parties agreed that the Peoplewould redact that question and answer so as to remove any reference to the suppressed oralstatement. As such, this portion of the written statement was not before the jury.