| People v Jackson |
| 2020 NY Slip Op 07251 [189 AD3d 1705] |
| December 3, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Bobby Jackson, Appellant. |
Theresa M. Suozzi, Saratoga Springs, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Rebecca L. Fox of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Clinton County (Favreau, J.),rendered December 7, 2018, upon a verdict convicting defendant of the crime of criminalpossession of a controlled substance in the third degree (two counts).
Defendant was charged by indictment with two counts of criminal possession of a controlledsubstance in the third degree. County Court denied defendant's pretrial motion to, among otherthings, suppress all physical evidence attributable to a search of defendant's person that wasconducted pursuant to a search warrant. Following a trial, defendant was convicted of bothcounts. The court sentenced him, as a second felony drug offender, to two concurrent prisonterms of nine years followed by three years of postrelease supervision, plus a fine. Defendantappeals.
County Court did not err in denying defendant's suppression motion, because the searchwarrant was supported by probable cause. Probable cause for a search warrant "may be supplied,in whole or in part, by hearsay information, provided that it satisfies the two-partAguilar-Spinelli test requiring a showing that the informant is reliable and has a basis ofknowledge for the information imparted" (People v Bahr, 35 AD3d 909, 910 [2006] [internal quotation marks,brackets and citations omitted], lv denied 8 NY3d 919 [2007]; see People vGriminger, 71 NY2d 635, 639 [1988]). "The People must produce a confidential informantfor an ex parte hearing upon defendant's request where, as here, they rely on the statements of theconfidential informant to establish probable cause" (People v Givans, 170 AD3d 1638, 1639 [2019] [citations omitted];see People v Kirkley, 172 AD3d1541, 1542 [2019], lv denied 33 NY3d 1106 [2019]). "The purpose of theDarden hearing is to verify the truthfulness of the police witness's testimony about his orher dealing with a known informant by ensuring that the informant exists and that he or sheprovided the police with information about the specified criminal activity" (People vGivans, 170 AD3d at 1639 [internal quotation marks and citations omitted]; see People v Matthews, 159 AD3d1043, 1044 [2018]).
A confidential informant (hereinafter CI) appeared at the Darden hearing, therebyestablishing his or her existence, and testified to providing evidence to the police that wasconsistent with information that was included in the search warrant application. In theapplication, a police officer attested that the information supplied by this CI was confirmed by aninvestigation conducted by police officers, including that two other CIs provided corroborativeinformation regarding having purchased drugs in a similar manner and location, near defendant'svehicle and from a person matching defendant's general description. Thus, in addition to theofficer's attestation that the first CI had provided credible information to the police in the past,information gleaned from the police investigation established that the first CI was reliable (see People v Mabeus, 63 AD3d1447, 1450-1452 [2009]; People vTocci, 52 AD3d 541, 541-542 [2008], lv denied 11 NY3d 858 [2008]). Theapplication also revealed that the CI recently participated in a controlled drug buy involvingdefendant and one of his dealers, thereby establishing the CI's basis of knowledge, which wasfurther elucidated during the Darden hearing. Additionally, the search warrant applicationincluded information about the movements of defendant's vehicle, as shown through GPStracking of the vehicle pursuant to a separate warrant. These details, along with explanationsfrom police officers comparing defendant's movements to those typical of narcotics traffickers,buttressed the CI's information that defendant would be returning to Clinton County with drugson or about the date that the warrant was issued. Accordingly, County Court properly denieddefendant's motion to suppress the physical evidence as the search warrant was supported byprobable cause (see People v Bahr, 35 AD3d at 911).
To the extent that defendant complains that he was improperly subjected to a strip search, hisargument is without merit. "[A] strip search must be founded on a reasonable suspicion that thearrestee is concealing evidence underneath clothing and the search must be conducted in areasonable manner" (People vTurner, 178 AD3d 70, 75 [2019] [internal quotation marks and citations omitted]).Inasmuch as the police obtained a search warrant that allowed for separate searches of the vehicleand defendant's person, the unsuccessful search for contraband in the vehicle did not preclude asearch of defendant himself. Defendant asserts that, because nothing was found when a policeofficer searched him at the side of the road following a stop of his vehicle, no further search waspermissible. However, the roadside pat down was not completed due to defendant squirming andwithdrawing his consent to the search once the officer reached defendant's waistband.[FN1] Although the police officer hadthe authority to continue the search based on the warrant, a full search on the side of the road inJanuary would not have been reasonable or appropriate, especially considering that defendantwas wearing multiple layers of clothing. The police were justified in detaining defendant for thepurpose of transporting him to the police station to execute the search warrant in a private room,with male officers present, and handcuffing him during the transport for officer safety and tocomply with police department procedures. Whereas a strip search may be conducted without awarrant where the police have reasonable suspicion that contraband may be concealed underclothing, here the police had obtained a warrant, based on probable cause, that permitted a searchof defendant's person; the warrant, together with the circumstances, authorized a strip search (see People v Hall, 10 NY3d 303,310-311 [2008], cert denied 555 US 938 [2008]; People v Hunter, 73 AD3d 1279, 1280-1281 [2010]).[FN2]
The jury's verdict was supported by legally sufficient evidence and was not against theweight of the evidence. "When considering a challenge to the legal sufficiency of the evidence,[this Court] view[s] the evidence in the light most favorable to the People and evaluate[s]whether there is any valid line of reasoning and permissible inferences which could lead arational person to the conclusion reached by the jury on the basis of the evidence at trial and as amatter of law satisfy the proof and burden requirements for every element of the crime charged"(People v Hernandez, 180 AD3d1234, 1235 [2020] [internal quotation marks and citations omitted], lv denied 35NY3d 993 [2020]; see People v Bleakley, 69 NY2d 490, 495 [1987]). "In contrast, whenundertaking a weight of the evidence review, we must first determine whether, based on all thecredible evidence, a different finding would not have been unreasonable and, if not, then weighthe relative probative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony to determine if the verdict is supported by theweight of the evidence" (People v Hernandez, 180 AD3d at 1235 [internal quotationmarks, brackets and citations omitted]; see People v Saylor, 173 AD3d 1489, 1490 [2019]). In assessingthe weight of the evidence, this Court must view the evidence in a "neutral light and accord[ ]deference to the jury's superior opportunity to assess witness credibility" (People v Warrington, 155 AD3d1450, 1452 [2017]).
As to the first count of criminal possession of a controlled substance in the third degree, aperson is guilty "when he [or she] knowingly and unlawfully possesses . . . anarcotic drug with intent to sell it" (Penal Law § 220.16 [1]). As to the second countof the same crime for which defendant was convicted, a person is guilty "when he [or she]knowingly and unlawfully possesses . . . one or more preparations, compounds,mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures orsubstances are of an aggregate weight of one-half ounce or more" (Penal Law§ 220.16 [12]).
Defendant does not challenge the evidence establishing that the item recovered by policefrom the floor of the police station contained cocaine—a narcotic drug—with anaggregate weight greater than one-half ounce. Further, "the manner in which the cocaine waspackaged, coupled with its weight and substantial street value, permitted a rational inference thatdefendant possessed the cocaine with the intent to sell" (People v Wheeler, 159 AD3d 1138, 1140 [2018], lv denied31 NY3d 1123 [2018]). Defendant instead argues that there was no proof that he possessed thecocaine. We disagree. Three police officers each testified that, as defendant sat down to removehis outer pants during the strip search (despite being told to stand while removing his clothing),they heard a noise like a thud and then noticed a black item on the floor under the bench wheredefendant was sitting. That item consisted of cocaine in vacuum-sealed bags, which were thenwrapped together in electrical tape. Each officer testified that the item was not on the floor priorto the search. Moreover, a video of the search—played to the jury first in its normal formand speed, then zoomed in and freeze-framed—depicts what appears to be the item fallingfrom the back of defendant's pants as he begins removing them. Viewing the evidence in the lightmost favorable to the People, defendant's convictions are supported by legally sufficient evidence(see People v Sanders, 185 AD3d1280, 1286 [2020], lv denied 35 NY3d 1115 [2020]; People v Pope, 96 AD3d 1231,1234 [2012], lv denied 20 NY3d 1064 [2013]). Although a different verdict would nothave been unreasonable, as the officers testified that they did not directly see the item fall fromdefendant's person, we conclude, after viewing the evidence in a neutral light and deferring to thejury's credibility findings, that the verdict is not against the weight of the evidence (see People v Hilton, 185 AD3d1147, 1149 [2020], lv denied 35 NY3d 1095 [2020]; People v Sanders, 185AD3d at 1286; People v Pierre, 162AD3d 1325, 1327 [2018], lv denied 32 NY3d 1007 [2018]).
Finally, considering the amount of cocaine that defendant possessed with the intent to sell it,along with his lengthy criminal history spanning numerous states, we will not disturb thesentence (see People v Brown, 169AD3d 1258, 1260 [2019], lv denied 33 NY3d 1029 [2019]). However, we note thatdefendant was sentenced as a second felony drug offender rather than—as stated byCounty Court and reflected in court documents—a second felony offender (seePenal Law § 70.70 [1] [b]; compare Penal Law § 70.70 [3] [b][i], with § 70.06 [2], [3] [b]; [4] [b]). Accordingly, we direct County Courtto issue an amended certificate of conviction and uniform sentence and commitment formreflecting the correct status (see People v Sanders, 185 AD3d at 1287-1288). Defendant'sremaining contentions have been reviewed and found to be without merit.
Egan Jr., J.P., Aarons, Pritzker and Colangelo, JJ., concur. Ordered that the judgment isaffirmed, and matter remitted for entry of an amended uniform sentence and commitment formand an amended certificate of conviction.
Footnote 1:Defendant had provided consentto a search before he was informed that the police had obtained a search warrant.
Footnote 2:Although defendant complainsthat he was subjected to a visual body cavity search, the police were justified in conducting sucha search once contraband fell out of defendant's pants, as it became more likely that he would beconcealing other contraband on or in his body. Even so, because no additional contraband wasfound during the visual body cavity search, there was nothing that could have been suppressed asa result of that search.