| People v Shabazz |
| 2019 NY Slip Op 53935 [177 AD3d 1170] |
| November 27, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Salih R. Shabazz, Appellant. |
Theodore J. Stein, Woodstock, for appellant, and appellant pro se.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri ofcounsel), for respondent.
Mulvey, J. Appeal from a judgment of the County Court of Broome County (Dooley,J.), rendered October 26, 2016, convicting defendant following a nonjury trial of thecrimes of criminal possession of a controlled substance in the third degree (two counts)and criminally using drug paraphernalia in the second degree (two counts).
Shortly after police officers saw defendant leaving a building, they apprehended himand executed a search warrant on the second-floor apartment in the building, seizing,among other things, cash, a digital scale, boxes of glassine envelopes and heroin.Following a nonjury trial, defendant was convicted of criminal possession of a controlledsubstance in the third degree (two counts) and criminally using drug paraphernalia in thesecond degree (two counts). County Court sentenced him to concurrent terms ofimprisonment of 10 years, followed by three years of postrelease supervision, for eachconviction of criminal possession of a controlled substance in the third degree, and tolesser concurrent terms on the other convictions. Defendant appeals.
The convictions are supported by legally sufficient evidence and are not against theweight of the evidence. In reviewing the legal sufficiency of the evidence, this Courtmust determine whether, when viewing the evidence in the light most favorable to thePeople, "there is any valid line of reasoning and permissible inferences which could leada rational person to the conclusion reached by the [factfinder] on the basis of theevidence at trial and as a matter of law satisfy the proof and burden requirements forevery element of the crime[s] charged" (People v Bleakley, 69 NY2d 490, 495[1987] [citation omitted]; accordPeople v West, 166 AD3d 1080, 1083-1084 [2018], lv denied 32 NY3d1129 [2018]; People vGethers, 151 AD3d 1398, 1398-1399 [2017], lv denied 30 NY3d 980[2017]). To determine whether a verdict is against the weight of the evidence, this Courtmust determine whether a different finding would not have been unreasonable; then,viewing the evidence in a neutral light and deferring to the factfinder's credibilityassessments, we weigh the relative probative force of the conflicting testimony and therelative strength of the conflicting inferences that may be drawn from the testimony (see People v Nunes, 168 AD3d1187, 1188 [2019], lv denied 33 NY3d 979 [2019]).
As relevant here, "[a] person is guilty of criminal possession of a controlledsubstance in the third degree when he [or she] knowingly and unlawfully possesses. . . a narcotic drug with intent to sell it" (Penal Law § 220.16[1]). "A person is guilty of criminally using drug paraphernalia in the second degreewhen he [or she] knowingly possesses or sells . . . glassine envelopes. . . or any other material suitable for the packaging of individual quantitiesof narcotic drugs . . . under circumstances evincing an intent to use, orunder circumstances evincing knowledge that some person intends to use, the same forthe purpose of unlawfully manufacturing, packaging or dispensing of any narcotic drug"(Penal Law § 220.50 [2]). Another subdivision of the same statutecriminalizes knowing possession of "[s]cales and balances used or designed for thepurpose of weighing or measuring controlled substances, under circumstances evincingan intent to use, or under circumstances evincing knowledge that some person intends touse, the same for purpose of unlawfully manufacturing, packaging or dispensing of anynarcotic drug" (Penal Law § 220.50 [3]). Possession includes actualphysical possession or constructive possession through the exercise of "dominion orcontrol over the contraband by a sufficient level of control over the area in which thecontraband was found" (Peoplev Leduc, 140 AD3d 1305, 1306 [2016] [internal quotation marks, brackets andcitations omitted], lv denied 28 NY3d 932 [2016]; see Penal Law§ 10.00 [8]; Peoplev Alberts, 161 AD3d 1298, 1300-1301 [2018], lv denied 31 NY3d 1114[2018]; People v Maricle,158 AD3d 984, 986 [2018]). "Dominion or control is necessarily knowing, and suchconstructive possession may qualify as knowing possession" (People v Muhammad, 16NY3d 184, 188 [2011] [internal quotation marks and citation omitted]). Whether adefendant had dominion or control over the area where the contraband was found may beinferred from the circumstances, and we generally defer to the factfinder's resolution ofthis factual question (see Peoplev Crooks, 129 AD3d 1207, 1208-1209 [2015], affd 27 NY3d 609[2016]).
As defendant's trial motion for dismissal challenged only the element of whetherdefendant knowingly possessed the narcotics and paraphernalia located in the apartment,his legal sufficiency argument is preserved only as to that element. A police officertestified that defendant was observed exiting the building on more than one occasionover the days leading up to the execution of the search warrant, including one day whenhe was seen descending the stairs from the second floor. Defendant's wallet, whichincluded his identifying documents, was found in a bedroom that contained men's andwomen's clothing. Another officer testified that, when asked for his address, defendantgave the address of the apartment that was searched; defendant also signed aMiranda waiver form containing that address in the pedigree information.Defendant was seen leaving the building shortly before the search warrant was executedand some of the drugs and paraphernalia were on the floor of the living room at the timeof execution, indicating that someone was then or recently in the process of packagingthe drugs. In his discussion with an officer, defendant demonstrated his knowledge thatthere were two safes in the apartment, his familiarity with the contents of each, and thathe cut and packaged heroin for sale. This evidence was legally sufficient to establish thatdefendant exercised dominion or control over the apartment and the safe where thecontraband was found, so as to establish his knowing possession thereof (see People v Palin, 158 AD3d936, 938 [2018], lv denied 31 NY3d 1016 [2018]).
Defendant's statements to police indicated that he either directly or indirectly sold 10to 15 grams of heroin per week, and the evidence was consistent with his admission todrug trafficking. The packaging materials and scale had residue on them, packagedbundles of heroin were stored in a safe with cash, and officers testified that the amount ofheroin was inconsistent with personal use and the heroin was bundled for sale. Althoughanother verdict would not have been unreasonable, the verdict is not against the weightof the evidence because the evidence proved that defendant knowingly possessed adigital scale and glassine envelopes under circumstances evincing his knowledge thatsomeone intended to use these items for packaging drugs for sale, and that he possessedthe heroin in two different locations within the apartment (the living room and the safe)with the intent to sell that heroin (see People v Newman, 169 AD3d 1157, 1160 [2019]).
Defendant's challenge to the indictment as multiplicitous is unpreserved because hefailed to raise that contention in his pretrial motion to dismiss the indictment or at anytime before the verdict was rendered (see People v Rice, 172 AD3d 1616, 1619 [2019]; People v Valcarcel, 160 AD3d1034, 1037 [2018], lv denied 31 NY3d 1088 [2018]). His challenge toCounty Court's failure to hold a Darden hearing is unpreserved because "hismotion papers did not set forth a factual basis to warrant such a hearing" (People v Seecoomar, 174AD3d 1154, 1155 [2019]; see People v Brown, 167 AD3d 1331, 1333 [2018]).Defendant failed to show that any Rosario violation occurred, as he did notdemonstrate the existence of the notes that he now alleges were withheld (see People v Blount, 129AD3d 1303, 1305-1306 [2015], lv denied 27 NY3d 992 [2016]).
Although defendant is permitted to argue—even though he did not preservethe issue by raising it in the trial court—that his indelible right to counsel wasviolated, we are unable to address the issue because we lack a factual record necessaryfor appellate review (see People v Kinchen, 60 NY2d 772, 773-774 [1983]; People v Hadfield, 119 AD3d1224, 1227 [2014], lv denied 24 NY3d 1002 [2014]; compare People v Westervelt,47 AD3d 969, 972-973 [2008], lv denied 10 NY3d 818 [2008]). Morespecifically, there is no record "proof that defendant was represented by counsel inconnection with the [outstanding] warrant or any pending charge," such that the policewould have been prohibited from questioning defendant on the unrelated current chargeswithout obtaining a waiver in front of counsel (People v Kinchen, 60 NY2d at774; see People v Lopez, 16NY3d 375, 380 [2011]).
We reject defendant's assertion that he was entitled to an Alfinito/Frankshearing to challenge the veracity of the statements contained in the search warrantapplication. The defendant bears the burden of proving entitlement to such a hearing byshowing that the search warrant application contains a false statement made knowingly,intentionally or with reckless disregard for the truth (see People v Victor, 139 AD3d 1102, 1104 [2016], lvdenied 28 NY3d 1076 [2016]; People v Folk, 44 AD3d 1095, 1097 [2007], lvdenied 9 NY3d 1006 [2007]; People v Richardson, 28 AD3d 1002, 1005 [2006], lvdenied 7 NY3d 817 [2006]). Because defendant provided no factual support toCounty Court for his request for such a hearing, and even now offers nothing more thanconclusory allegations, he was not entitled to an Alfinito/Franks hearing (seeid.).
Garry, P.J., Egan Jr. and Aarons, JJ., concur. Ordered that the judgment isaffirmed.