| People v Kalabakas |
| 2020 NY Slip Op 02954 [183 AD3d 1133] |
| May 21, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Vasilios Kalabakas, Appellant. |
Steven M. Sharp, Albany, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), forrespondent.
Colangelo, J. Appeal from a judgment of the Supreme Court (Lynch, J.), renderedFebruary 7, 2019 in Albany County, upon a verdict convicting defendant of the crimes ofcriminal possession of controlled substance in the first degree, criminal possession of acontrolled substance in the second degree, criminal possession of a controlled substancein the third degree (three counts), criminal possession of a weapon in the second degreeand criminal possession of a controlled substance in the seventh degree, and the violationof unlawful possession of marihuana.
On March 15, 2018 at approximately 10:27 p.m., State Trooper Daniel Mauroeffected a traffic stop on Interstate 87 in Albany County of a vehicle with darkly tintedwindows that was being driven erratically by its owner, Ernesto Bocio, in whichdefendant was a passenger. Upon approach, Mauro detected the strong odor of burnt andraw marihuana coming from both sides of the vehicle, observed marihuanashake—flakes of vegetation—on defendant and Bocio's shirts and inside thevehicle, and discovered that Bocio was driving with a suspended license. Bocio anddefendant were asked to exit the vehicle, were observed to be very nervous and providedsomewhat inconsistent accounts of their travel plans, although both indicated that theywere headed to the City of Buffalo, Erie County. Bocio admitted to smoking marihuanaearlier and was found to be in possession of cocaine and $4,000 in cash. During a searchof defendant, he became uncooperative, and both defendant and Bocio were put inhandcuffs for officer safety. A search of the vehicle by Mauro and another trooperdisclosed several bags of cocaine, crack cocaine and heroin, a bag of pills identified asAlprazolam, a controlled substance, and a bag of leafy marihuana, all secreted in ahidden after-market compartment in the dashboard. The street value of the controlledsubstances, described by police investigators trained in drug trafficking practices asuncut and pure, was estimated to be in the hundreds of thousands of dollars after mixingin fillers and packaging it for sale. Also found in the compartment were a loaded,operable semi-automatic .40 caliber pistol and tobacco leaves used to roll marihuanajoints. An iPhone, a flip-phone and Bocio's wallet were also recovered from the frontcenter console of the vehicle next to the shift. Defendant and Bocio were then arrested. Itwas later determined that the hidden compartment was mechanically operable using amagnet found in Bocio's wallet.
Defendant was thereafter charged, in a joint indictment with Bocio, with one counteach of the crimes of criminal possession of a controlled substance in the first, second,fifth and seventh degrees, three counts of criminal possession of a controlled substance inthe third degree and one count of criminal possession of a weapon in the second degree,as well as the violation of unlawful possession of marihuana. Supreme Court denieddefendant's motion to suppress his statements to police and the physical evidence seizedfrom the vehicle, but granted defendant's motion for a separate trial and the matterproceeded to a jury trial. Upon the People's motion, the court dismissed the charge ofcriminal possession of a controlled substance in the fifth degree, and defendant wasconvicted of the remaining charges. Defendant was sentenced for his conviction ofcriminal possession of a controlled substance in the first degree to a prison term of eightyears, followed by five years of postrelease supervision, and to lesser concurrent prisonterms followed by periods of postrelease supervision for the remaining felonyconvictions.[FN1]Defendant appeals.
We affirm. Initially, we are unpersuaded by defendant's contention that count 1 of theindictment—charging criminal possession of a controlled substance in the firstdegree—impermissibly combined his possession of heroin and cocaine to satisfythe eight-ounce aggregate weight threshold element of that crime and was, therefore,facially duplicitous. Contrary to the People's contention, this challenge was preserved bydefendant's pretrial motion to dismiss the indictment as duplicitous. In response, thePeople specifically objected to dismissal by arguing that count 1 properly aggregated theweight of two narcotic drugs found in defendant's possession to reach the weightthreshold. Although the record does not reflect that Supreme Court expressly ruled onthis aspect of defendant's motion, given that defendant timely filed a motion raising thisclaim and seeking a ruling, he "is deemed to have thereby protested the court's. . . failure to rule . . . sufficiently to raise a question of lawwith respect to such . . . failure regardless of whether any actual protestthereto was registered" (CPL 470.05 [2]).[FN2]
Addressing the merits, defendant's challenge to count 1 does not withstand analysis.As relevant here, criminal possession of a controlled substance in the first degree requiresproof that defendant knowingly and unlawfully possessed "one or more. . . substances containing a narcotic drug and said . . .substances are of an aggregate weight of eight ounces or more" (Penal Law§ 220.21 [1] [emphases added]).[FN3] To the extent that defendant's challengeappears to be one of statutory interpretation, it lacks merit, as that subsectioncontemplates that a person can be charged with possessing more than one narcotic drugand that the weights of the narcotics may be combined to reach the threshold weightrequirement. This is supported by the use of the plural "one or more . . .substances" that contain "a narcotic drug," and that "said . . .substances" must have the requisite weight (Penal Law § 220.21 [1][emphasis added]). This statute does not, on its face, require possession of a singlenarcotic drug and, instead, by its terms, permits prosecution for possession of more thanone substance, each containing "a narcotic drug." Thus, the singular phrase, "a narcotic,"refers to what must be found in each of the "one or more substances" possessed, and doesnot require that the narcotic be the same in each of the substances. As such, "givingeffect to the plain meaning [of the statutory text]" (People v Roberts, 31 NY3d 406, 418 [2018] [internalquotation marks and citation omitted]; accord People v Wager, 173 AD3d 1352, 1353 [2019],lv denied 34 NY3d 1020 [2019]), we find that the statutory language permits thesubstances possessed to contain either the same or different narcotics.
With regard to defendant's claim of duplicity as to count 1, a "count is duplicitouswhen it charges more than one crime that is completed by a discrete act in the samecount" (People v Madsen,168 AD3d 1134, 1137 [2019]; see People v Alonzo, 16 NY3d 267, 269 [2011]). Count 1charged defendant with "possess[ing] a substance containing cocaine, a narcotic drug,and a substance containing heroin, a narcotic drug, with an aggregateweight of eight (8) ounces or more" (emphasis added). We conclude that this countwas not facially duplicitous as it did not charge more than one crime committed bydiscrete acts but, rather, charged defendant with one crime, i.e., simultaneouslypossessing two narcotic drugs, cocaine and heroin, in substances whose combined weightsatisfied the statutory threshold.
To that end, Penal Law § 220.21 (1), like other drug possession statutes(see Penal Law art 20), "does not distinguish between the types of narcoticspossessed, but treats all drugs classified as narcotics interchangeably" (People vMartin, 153 AD2d 807, 808 [1989], lv denied 74 NY2d 950 [1989];see Penal Law § 220.00 [7]). Thus, it has been recognized that"there is no basis for multiple counts [of criminal possession of narcotics with intent tosell] under [Penal Law § 220.16] based on the fact that the narcotics[possessed upon arrest] happen to be of different types" (People v Martin, 153AD2d at 808; see People vMiller, 15 AD3d 265, 265 [2005], lv denied 4 NY3d 833 [2005];People v Maldonado, 271 AD2d 328, 328 [2000], lv denied 95 NY2d 867[2000]; People v Eustate, 265 AD2d 229, 230 [1999], lv denied 94 NY2d919 [2000]). We discern nothing impermissible with combining the weight of thesubstances containing more than one narcotic that defendant simultaneously possessed toreach the statutory aggregate weight (compare People v Brown, 99 NY2d 488,493 [2003]). Importantly, the gravamen of this highest grade of criminal possession of acontrolled substance is the aggravating factor, i.e., the knowing possession ofnarcotic-laden substances with an aggregate weight of eight ounces or more, and theseriousness of defendant's conduct is not altered or reduced by the fact that hesimultaneously possessed substances containing more than one type of narcotic (seePeople v Buckley, 75 NY2d 843, 846 [1990] [simultaneous possession of stolenproperty belonging to multiple victims can be considered one offense and the value ofthe property aggregated to constitute an enhanced charge of criminal possession of stolenproperty]).
Defendant's argument that, aside from facial duplicity, the trial evidence renderedcount 1 duplicitous is not preserved for our review (see People v Allen, 24 NY3d 441, 449 [2014]). In anyevent, the evidence at trial did not demonstrate that "multiple criminal acts occurred"when defendant constructively possessed the narcotics, and there was no concernregarding juror unanimity (People v Gannon, 174 AD3d 1054, 1057 [2019], lvdenied 34 NY3d 980 [2019]; see People v Alonzo, 16 NY3d at 270; compare People v Hilton, 166AD3d 1316, 1319 [2018], lv denied 32 NY3d 1205 [2019]). To that end, theforensic testimony established that the substances that defendant possessed contained6.388 ounces of cocaine and 2.10 ounces of heroin and, thus, neither alone satisfied theaggregate weight threshold. Accordingly, in convicting defendant on this count, the jurynecessarily concluded that he possessed substances containing both narcotics and did notselectively chose one or the other.
Defendant's challenge to Supreme Court's denial of his motion to suppress thephysical evidence recovered from the vehicle is likewise without merit. Defendant doesnot dispute that Mauro had authority to stop the vehicle based upon, among other things,Bocio's erratic driving and the vehicle's very dark tinted windows (see Vehicleand Traffic Law § 375 [12-a] [b] [2]; People v Brown, 169 AD3d 1258, 1259 [2019], lvdenied 33 NY3d 1029 [2019]; People v Banks, 148 AD3d 1359, 1360 [2017]; People v Cuffie, 109 AD3d1200, 1201 [2013], lv denied 22 NY3d 1087 [2014]). He also concedes thatthe troopers had probable cause to search him, Bocio and the vehicle given the troopers'detection—based upon their training and experience—of the strong odor ofmarihuana emanating from the vehicle and observations of marihuana "shake" on theirshirts, among other factors (seePeople v Sostre, 172 AD3d 1623, 1624 [2019], lv denied 34 NY3d 938[2019]; People v Dolan, 165AD3d 1499, 1500-1501 [2018]; People v Francois, 138 AD3d 1165, 1166 [2016]; People v Souffrant, 93 AD3d885, 887 [2012], lv denied 19 NY3d 968 [2012]; People v Horge, 80 AD3d1074, 1074-1075 [2011]). Defendant argues, however, that the scope of the searchto include the hidden compartment was not reasonable under the circumstances.However, "[w]here the search of a vehicle is justified by probable cause, officers mayalso search any of the contents of the vehicle that may conceal the contraband sought"(People v Francois, 138 AD3d at 1166, citing United States v Ross, 456US 798, 825 [1982]; see People v Dolan, 165 AD3d at 1500-1501; People v Kaid, 163 AD3d1151, 1151-1152 [2018], lv denied 32 NY3d 1005 [2018]).[FN4] Further, the FourthAmendment protects against "unreasonable searches and seizures" (US Const, 4thAmend) and, as such, warrantless searches are governed by a reasonableness standard(see People v Diaz, 33NY3d 92, 98 [2019], cert denied 589 US &mdash, 140 S Ct 394 [2019]); wefind that the People satisfied their burden of demonstrating that the search of the vehiclewas reasonable (see People vJimenez, 22 NY3d 717, 721 [2014]).
At the suppression hearing, the troopers involved in the search testified that, duringan inspection of the glove box and dashboard, they noticed a panel in the dashboardunder the glove box that contained mismatched and stripped screws and that a removablepanel next to it had been glued shut. After taking out a removable trim piece in thedashboard, the stripped screws fell out, and the troopers were able to see several plasticbags containing drugs and the firearm in the hidden compartment. Another panel wastemporarily removed to gain access to the hidden contraband. Contrary to defendant'sclaim, the troopers' search of the conspicuous hidden compartment was justified and didnot cause damage or involve "tearing apart the glove compartment area," and all panelsremoved during the search could be reattached (compare People v Gomez, 5 NY3d 416, 422 [2005]).
Defendant further argues that the convictions are not supported by legally sufficientevidence and are contrary to the weight of the evidence. He focuses on the limited directevidence connecting him to the drugs and gun found in the hidden compartment which,he contends, failed to establish his knowing possession of those items. Although defensecounsel moved for a trial order of dismissal of all counts on this ground at the close ofproof,[FN5] heconceded that the automobile presumption applied to the controlled substances found inthat compartment, providing presumptive evidence of defendant's knowing possession(see Penal Law § 220.25 [1]). Accordingly, defendant's legalsufficiency challenge is preserved only with regard to his convictions of criminalpossession of a weapon in the second degree and unlawful possession of marihuana (see People v Henry, 173 AD3d1470, 1473 n 2 [2019], lv denied 34 NY3d 932 [2019]).[FN6] In any event, inconducting our weight of the evidence review for all of the convictions, we necessarilyexamine the evidence to ensure that each element of the charged crimes was provenbeyond a reasonable doubt (seePeople v Vega, 170 AD3d 1266, 1267 [2019], lv denied 33 NY3d 1074[2019]).
"When reviewing a legal sufficiency claim, we view the evidence in the light mostfavorable to the People and evaluate whether there is any valid line of reasoning andpermissible inferences which could lead a rational person to the conclusion reached bythe jury on the basis of the evidence at trial and as a matter of law satisfy the proof andburden requirements for every element of the crime[s] charged" (People v Henry,173 AD3d at 1473 [internal quotation marks and citations omitted]). Criminal possessionof a weapon in the second degree required proof that defendant knowingly possessed aloaded firearm outside of his home or business (see Penal Law§ 265.03 [3]). As defendant was not found to be in physical possession ofthe firearm or controlled substances, "constructive possession can be established upon ashowing that he . . . exercised dominion or control over the property by asufficient level of control over the area in which the contraband is found" (People v Colon, 177 AD3d1086, 1087 [2019] [internal quotation marks and citation omitted]; see PenalLaw § 10.00 [8]). Further, aside from certain exceptions not applicablehere, under the automobile presumption applicable to firearms, "[t]he presence in anautomobile . . . of any firearm . . . is presumptive evidence ofits possession by all persons occupying such automobile at the time such weapon. . . is found" (Penal Law § 265.15 [3]; see People v Rawlinson, 170AD3d 1425, 1427 [2019], lv denied 33 NY3d 1107 [2019]).
The testimony of the troopers involved in the investigation established that theloaded firearm found in the hidden compartment was determined to be operable.Defendant's dominion and control over the compartment and, thus, his constructivepossession of the firearm and the contents of the compartment were established by factsshowing his ability to exercise control over an area located directly in front of where hewas sitting. The magnet that opened the hidden compartment was in Bocio's wallet in thecenter console, easily accessible to defendant. Notably, "[i]t is not necessary that thedefendant ha[d] exclusive access to the area where the loaded firearm was discovered" toestablish his or her constructive possession, which " 'may be established throughcircumstantial evidence' " (People v Sloley, 179 AD3d 1308, 1309 [2020], quoting People v Jemmott, 164 AD3d953, 956 [2018], lv denied 32 NY3d 1112 [2018]). Further, when the vehiclewas stopped, a strong odor of marihuana emanated from both sides of the vehicle,marihuana shake was visible on both defendant's and Bocio's shirts and on the seats andfloor inside the car, and defendant provided improbable reasons for the shake andadmitted to police that Bocio had smoked marihuana in the vehicle earlier during theirtrip. This was significant because the bagged marihuana and rolling papers were foundexclusively in the compartment, permitting the inference that the compartment had beenaccessed during their trip to retrieve and store the bag of marihauna and that defendant,therefore, was aware of what was in the compartment and had access to and control overit. Viewing the evidence most favorably to the People and affording them all permissibleinferences, applying both the automobile presumption and principles of constructivepossession, we find that defendant's conviction of criminal possession of a weapon in thesecond degree is supported by legally sufficient evidence, as is his conviction of themarihuana violation (see People v Bleakley, 69 NY2d 490, 495 [1987];People v Henry, 173 AD3d at 1474).
Turning to defendant's challenge to the weight of the evidence, we must "view theevidence in a neutral light and determine first whether a different verdict would havebeen unreasonable and, if not, weigh the relative probative force of conflicting testimonyand the relative strength of conflicting inferences that may be drawn from the testimonyto determine if the verdict is supported by the weight of the evidence" (People vHenry, 173 AD3d at 1473 [internal quotation marks and citations omitted]). Givendefendant's denial, in an interview with police, that he knew that the hidden compartmentexisted or about its contents and the lack of direct proof that he knew about andpossessed the contraband and weapon found therein, a different verdict would not havebeen unreasonable. Pertinent here, the controlled substance charges all required thatdefendant knowingly and unlawfully possessed the drugs found in the vehicle. Under theapplicable automobile presumption, where the drugs were not found on the person ofeither occupant, "[t]he presence of a controlled substance in an automobile. . . is presumptive evidence of knowing possession thereof by each andevery person in the automobile at the time such controlled substance was found" (PenalLaw § 220.25 [1]; see People v Nelson, 156 AD3d 1112, 1115 [2017], lvdenied 31 NY3d 1151 [2018]). To rebut that presumption, defendant deniedknowing that the compartment existed or of its contents and claimed that he was merely apassenger in the vehicle who had taken an unplanned ride with Bocio, unaware of hisspecific reasons for going to Buffalo or that drugs and a firearm were in the vehicle.Defendant points to the fact that the vehicle was owned and operated by Bocio and thatnone of the DNA evidence linked him to the contents of the compartment, and ananalysis of DNA found on the firearm indicated that Bocio was a possible contributor.However, defendant's admission that Bocio had smoked marihuana in the vehicle duringtheir ride, combined with the fact that all of the marihuana and rolling papers were storedin the compartment and marihuana shake was on their shirts and all over the inside of thecar, supports the inference that the compartment was accessed during the trip anddefendant was aware of its contents.
Further, defendant admitted that he had known Bocio for years and that, as a favor,he had driven a different vehicle to Buffalo on March 6, 2018, the weekend prior to thisincident, purportedly to show that vehicle to a prospective buyer, but claimed not to haveconnected with the person. When defendant was stopped by police in the Capital Districton that return trip, he was found to be driving with a suspended license and the vehiclewas impounded; Bocio paid about $1,000 to have the vehicle towed back to the Bronxon March 8, 2018, with defendant present. Defendant admitted that Bocio had given himhis iPhone[FN7] touse for GPS purposes on that trip, the same iPhone found in the vehicle when stopped byMauro on March 15, 2018, and the forensic evidence demonstrated that defendant usedthat phone to arrange the return of the vehicle to Bocio the prior weekend. Defendant hadprovided the towing company with two phone numbers for himself, one of which he alsoprovided to police during his interview and both of which were listed as contacts in theiPhone under a pseudonym very similar to defendant's name, which the Peopleconvincingly demonstrated was defendant; the flip-phone found in the vehicle alsocontained one of those phone numbers listed as a contact under that same pseudonym.Moreover, Bocio's iPhone, with which he had entrusted defendant on an out-of-town tripthe week prior to this stop, contained text messages and pictures connecting Bocio todrug transactions and large quantities of drugs and cash, supporting the inference thatdefendant was aware that Bocio was engaged in drug activity.
Although defendant told police that his purpose in going with Bocio all the way toBuffalo on March 15, 2018 was to retrieve his driver's license being held by the towingcompany in the Capital District, this account was not credible particularly given thetowing company owner's testimony that the company never held on to licenses when theytowed vehicles. Further, the evidence was unrefuted that the drugs were analyzed andtested positive for the requisite aggregate weight of heroin (59.6 grams, over two ounces)and cocaine (181.1 grams, over six ounces), and the pills were identified as Alprazolam.Defendant's intent to sell, an element of the charges for criminal possession of acontrolled substance in the third degree (see Penal Law § 220.16[1]), was readily inferable from the State Police investigator's testimony that the heroinand cocaine were uncut and of a pure quality, and from the vast quantity of the drugs thatthe investigator estimated had a street value after being cut in the hundreds of thousandsof dollars (see People vWheeler, 159 AD3d 1138, 1139-1140 [2018], lv denied 31 NY3d 1123[2018]). After evaluating the evidence in a neutral light and according appropriatedeference to the jury's factual assessments and credibility determinations, we are satisfiedthat the verdict is supported by the weight of credible evidence (see People vSloley, 179 AD3d at 1310; People v Colon, 177 AD3d at 1088).
Defendant further argues that Supreme Court erred in permitting the People tointroduce evidence extracted from Bocio's iPhone pursuant to a search warrant. To theextent that defendant claims that the contents of the iPhone constituted improperMolineux evidence, this was not part of or addressed during the People'sMolineux proffer, and defendant did not make this argument during pretrialchallenges to this evidence or at trial—when the scope and admissibility of thisevidence were again addressed; thus, this claim is not preserved for our review (see People v Haynes, 177AD3d 1194, 1197 n 3 [2019], lv denied 34 NY3d 1128 [2020]).[FN8]
Defendant also challenges the testimony regarding the content of the iPhone onhearsay and relevancy grounds. On direct examination of Mauro regarding the extractedcontents of the iPhone, the People elicited testimony that was temporally limited todefendant's trip to Buffalo the week earlier, during which he admittedly used the iPhone(March 6 through 8, 2018), and from the day of this arrest (March 15, 2018). This wasrelevant to disputed material issues, including defendant's knowledge and intent, and theabsence of mistake, and to establish his relationship with Bocio, their common schemeand plan and their communication just prior to this trip (see People v Leonard, 29NY3d 1, 6-7 [2017]; Peoplev Baber, 182 AD3d 794, 800 [2020]; People vConway, 179 AD3d 1218, 1219 [2020]). However, when defense counselcross-examined Mauro, he elicited broader testimony regarding the content of theiPhone, including some that predated March 6, establishing that the iPhone containedpictures showing Bocio, but not defendant, with large quantities of controlled substancesand cash. Counsel also elicited that none of the extracted content suggested thatdefendant was distributing drugs or was aware that there were drugs in the vehicle onMarch 15. As a result, Supreme Court concluded that the defense had opened the door totestimony regarding extracted content that predated March 6. We find that the court didnot abuse its discretion in permitting the People to question a police investigatorregarding messages and photographs extracted from the iPhone which, significantly,connected Bocio to drug transactions but also permitted the inference that defendantknew of Bocio's activity (see People v Leonard, 29 NY3d at 7; People vMateo, 2 NY3d 383, 425 [2004], cert denied 542 US 946 [2004]).
With regard to the admission of hearsay statements from the iPhone, including thoseattributed to Bocio, we agree with defendant that Supreme Court erred in admitting themunder the coconspirator exception to the hearsay rule. Such evidence is admissible onlywhere the People first make a prima facie case of conspiracy—that there was anagreement to commit a crime and an overt act—without recourse to thedeclarations of Bocio, which we find they did not do (see People v Caban, 5 NY3d 143, 148 [2005]; People v Trappler, 173 AD3d1334, 1337-1338 [2019], lv denied 34 NY3d 985 [2019], cert denied589 US &mdash, 140 S Ct 1281 [2020]; People v Cancer, 16 AD3d 835, 839 [2005], lvdenied 5 NY3d 826 [2005]). However, given the overwhelming evidence ofdefendant's guilt, the error in admitting this evidence was harmless. We are satisfied thatthere is no significant probability that the jury would have acquitted defendant had thisevidence not been admitted (see People v Crimmins, 36 NY2d 230, 242 [1975];People v Johnson, 176AD3d 1392, 1396 [2019], lv denied 34 NY3d 1129 [2020]).
Finally, defendant raises a litany of alleged errors by defense counsel that hecontends deprived him of the effective assistance of counsel. To the extent thatdefendant's contentions concern matters outside of the record, such as whether counselreviewed certain evidence or considered specific issues, they are more properly raised inthe context of a CPL article 440 motion to vacate (see People v Schmidt, 179 AD3d 1384, 1385 [2020]; People v Taylor, 156 AD3d86, 89-92 [2017], lv denied 30 NY3d 1120 [2018]). "To establish a claim ofineffective assistance of counsel, a defendant is required to demonstrate that he or shewas not provided meaningful representation and that there is an absence of strategic orother legitimate explanations for counsel's allegedly deficient conduct" (People v Santana, 179 AD3d1299, 1302 [2020] [internal quotation marks and citations omitted]). Defendantargues that counsel did not provide meaningful representation in that he failed, amongother things, to object to certain hearsay testimony or challenge the search warrants forthe seized cell phones. However, the record reflects that defendant denied knowledge orpossession of the contents of the compartment and pointed to Bocio as solelyresponsible, which coincided with defense counsel's trial strategy. Defendant has notdemonstrated, on this record, the absence of strategic reasons for defense counsel'sconduct (see id. at 1302-1303; People v Cowan, 177 AD3d 1173, 1178 [2019], lvdenied 34 NY3d 1127 [2020]) or that, had counsel made the motions or taken theactions defendant now points to, there was any likelihood of success (see People vCaban, 5 NY3d at 152; People v Watkins, 180 AD3d 1222, 1223-1234 [2020]; People v Richardson, 162AD3d 1328, 1331-1332 [2018], lv denied 32 NY3d 1128 [2018]). Viewingthe overall record, we find that counsel provided a vigorous and cogent trial strategy,albeit one ultimately not credited by the jury, that defendant was an innocent passenger inthe vehicle, made appropriate pretrial motions, and effectively cross-examined witnessesand challenged the scope of the evidence admitted, thereby providing defendant withmeaningful representation (see People v Caban, 5 NY3d at 152; People vSantana, 179 AD3d at 1302-1303). Defendant's remaining claims have beenexamined and found to be without merit.
Clark, J.P., Mulvey, Devine and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Defendant wassentenced to time-served on the misdemeanor and violation convictions.
Footnote 2:This issue was againaddressed just prior to jury selection, when the People made clear that they wereaggregating the weights of the cocaine and heroin under count 1, in the context ofdefendant's unsuccessful challenge to the sufficiency of the evidence before the grandjury with regard to that count.
Footnote 3:" 'Aggregate'weight refers to the weight of the substance which contains the drug, irrespective of theamount of the drug in the substance," whereas " '[p]ure' weight refers only to theactual amount of the drug itself, irrespective of whether it is included in anothersubstance" (William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY,Book 39, Penal Law § 220.00 at 24).
Footnote 4:The People's relianceupon the search incident to arrest exception to the Fourth Amendment's search warrantrequirement to justify the search of the hidden compartment is misplaced, as the search ofthe vehicle here occurred prior to the arrest of defendant or Bocio, who were onlyarrested after the contraband was found in the hidden compartment (see People vGalak, 81 NY2d 463, 466-467 [1993]; People v Raghnal, 135 AD3d 1168, 1169 [2016], lvdenied 27 NY3d 1137 [2016]). Although Mauro arguably could have arrested Bocioand impounded his car due to his driving with a suspended license, among other grounds,he did not testify that this was his intent at the time that he conducted the search so as torender the search incident to his arrest (see People v Reid, 24 NY3d 615, 619 [2014]; People v Walker, 20 NY3d122, 125-127 [2012]).
Footnote 5:After the People rested,defendant unsuccessfully moved to dismiss the charges based upon legal insufficiency ofthe evidence on this ground and then rested without submitting any direct evidence ortestimony. Thus, when the People rested, it was at "the conclusion of all the evidence"(CPL 290.10 [1]) and defendant was not required to renew his motion to dismiss after herested (cf. People v Kolupa,13 NY3d 786, 787 [2009]; People v Hines, 97 NY2d 56, 61 [2001];People v Kirkpatrick, 32 NY2d 17, 21 [1973]).
Footnote 6:The automobilepresumption does not apply to unlawful possession of marihuana (see People v Wallace, 153AD3d 1632, 1633 [2017]).
Footnote 7:Although police wereunable to obtain subscriber information for the iPhone, it was undisputed at trial that itbelonged to Bocio.
Footnote 8:Defendant did notpreserve his present claim that evidence regarding his trip to Buffalo the week before thisarrest constituted improper Molineux evidence (see People v Haynes, 177AD3d 1194, 1197 n 3 [2019], lv denied 34 NY3d 1128 [2020]). Were we toaddress this claim, we would find that the information was not evidence of unchargedconduct and, in any event, was properly admitted as relevant to the charges andinextricably intertwined with defendant's statement to police with regard to why he wastraveling with Bocio to Buffalo at the time of this arrest, and that this informationcompleted the narrative and was required background information (see People v Morris, 21 NY3d588, 600 [2013]).