| People v Patterson |
| 2021 NY Slip Op 06010 [199 AD3d 1072] |
| November 4, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Ralph A. Patterson, Appellant. |
John R. Trice, Elmira, for appellant, and appellant pro se.
Michael A. Korchak, District Attorney, Binghamton (Rita M. Basile of counsel), forrespondent.
Reynolds Fitzgerald, J. Appeal from a judgment of the County Court of Broome County(Cawley Jr., J.), rendered January 16, 2020, upon a verdict convicting defendant of the crimes ofcriminal possession of a controlled substance in the third degree (two counts) and criminallyusing drug paraphernalia in the second degree.
On December 3, 2018, a detective applied for and obtained a search warrant authorizing thesearch of the second floor of 248 Chenango Street in the City of Binghamton, Broome County, aswell as all persons located within the property address, based, in part, upon a sworn statementfrom a confidential informant (hereinafter CI). Upon execution of the search warrant the nextday, the police recovered over half an ounce of crack cocaine, multiple cell phones, large sums ofcash and plastic sandwich bags. Defendant was ultimately indicted on two counts of criminalpossession of a controlled substance in the third degree and criminally using drug paraphernaliain the second degree.
As part of his omnibus motion, defendant sought to suppress the physical evidence on thebasis that the information relied upon for the issuance of the warrant was stale. After conductinga Darden hearing, County Court concluded that the search warrant was in all respectslawful because it was supported by probable cause premised upon information that was not stale.Following a jury trial, defendant was convicted on all counts. He was sentenced as a secondfelony offender to concurrent prison terms of 5
Initially, defendant contends that the existence of probable cause to issue the warrant wasbased on stale information, rendering said warrant defective. "To establish probable cause for theissuance of a search warrant, the warrant application must demonstrate that there is sufficientinformation to support a reasonable belief that evidence of a crime may be found in a certainplace" (People v Cazeau, 192 AD3d1388, 1388 [2021] [internal quotation marks and citations omitted], lv denied 37NY3d 963 [2021]). "Where a search warrant application is based upon information obtainedfrom a CI, the application must demonstrate the veracity and/or reliability of the CI and the basisof the CI's knowledge" (People vOliver, 172 AD3d 1457, 1458-1459 [2019] [citations omitted], lv denied 34NY3d 1080 [2019]).
At the Darden hearing, the CI testified to working with and providing information tothe detective for the past two years that resulted in other arrests. This testimony was in accordwith the detective's attestation attached to the search warrant, thereby demonstrating that the CIwas reliable (see People v Jackson,189 AD3d 1705, 1706 [2020], lv denied 36 NY3d 1098 [2021]). The CI furthertestified as to the details of the CI's participation in a controlled drug buy [*2]involving defendant, which was buttressed by the detective'sinvestigation and that the CI's purchase tested positive for cocaine. The CI's information wasbased on "firsthand observations and interactions with defendant—the most reliabledemonstration of the basis for a CI's knowledge" (People v Cowan, 177 AD3d 1173, 1175 [2019] [internal quotationmarks, brackets and citation omitted], lv denied 34 NY3d 1127 [2020]). "While there isno question that it is necessary for the facts comprising the alleged criminal conduct to berelatively current with the application for the search warrant to ensure probable cause exists" (People v Ming, 35 AD3d 962, 964[2006] [citations omitted], lv denied 8 NY3d 883 [2007]), we have long held that"[p]robable cause is not determined simply by counting the number of days between theoccurrence of the events relied upon and the warrant's issuance" (People v Teribury, 91AD2d 815, 816 [1982]; see People v Walker, 285 AD2d 660, 661 [2001], lvdenied 97 NY2d 659 [2001], cert denied 535 US 1064 [2002]). Moreover, were weto count days, the time between the sale of the crack cocaine recounted in the CI's affidavitsupporting the application for the warrant and its issuance was certainly close enough in time topreclude its classification as stale (see People v Ming, 35 AD3d at 964). Accordingly,County Court properly determined that the CI provided reliable and timely information thatjustified a finding that probable cause existed to issue the search warrant (see People v Matthews, 159 AD3d1043, 1045 [2018]; People v Jackson, 189 AD3d at 1706).
Defendant next asserts that his convictions are not supported by legally sufficient evidenceand are against the weight of the evidence. Specifically, defendant contends that the People failedto prove beyond a reasonable doubt that he knowingly possessed the cocaine as there was noevidence that he knew there were drugs in the apartment or that the drugs belonged to him."When reviewing the legal sufficiency of the evidence, this Court must view the evidence in thelight most favorable 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 by the juryon the basis of the evidence at trial and as a matter of law satisfy the proof and burdenrequirements for every element of the crimes charged. In contrast, when conducting a weight ofthe evidence review, this Court must view the evidence in a neutral light and determine firstwhether a different verdict would have been unreasonable and, if not, then weigh the relativeprobative force of conflicting testimony and the relative strength of conflicting inferences thatmay be drawn from the testimony to determine if the verdict is supported by the weight of theevidence" (People v Rudge, 185AD3d 1214, 1215 [2020] [internal quotation marks, brackets and citations omitted], lvdenied 35 NY3d 1070 [2020]; see People v Bleakley[*3], 69 NY2d 490, 495 [1987]).
As relevant here, Penal Law § 220.16 prohibits knowingly possessing "anarcotic drug with intent to sell it" or a mixture "containing a narcotic drug" weighing "one-halfounce or more" (Penal Law § 220.16 [1], [12]; see People v Garcia-Toro, 155 AD3d 1086, 1086 [2017], lvdenied 30 NY3d 1115 [2018]). "A person is guilty of criminally using drug paraphernalia inthe second degree when he [or she] knowingly possesses or sells . . . glassineenvelopes . . . or any other material suitable for the packaging of individualquantities of narcotic drugs . . . under circumstances evincing an intent to use, orunder circumstances evincing knowledge that some person intends to use, the same for thepurpose of unlawfully manufacturing, packaging or dispensing of any narcotic drug" (Penal Law§ 220.50 [2]). "Constructive possession may be established by circumstantialevidence and any conflict in the evidence regarding a defendant's dominion and control over thedrugs in question . . . creates issues of witness credibility, and the jury'sdetermination in that regard must be accorded great deference. Generally, possession alonesuffices to permit the inference that the possessor knows what he or she possesses, especially. . . if it is . . . on his or her premises" (People v Garcia-Toro,155 AD3d at 1086-1087 [internal quotation marks, brackets and citations omitted]). "Withrespect to establishing a defendant's intent to sell drugs, the jury is allowed to infer, based on theamount of drugs at issue, that the defendant possessed them for the purpose of financial gain,rather than personal consumption" (People v Crooks, 129 AD3d 1207, 1209 [2015] [citations omitted],affd 27 NY3d 609 [2016]).
At trial, a detective with the Johnson City Police Department testified that, before enteringthe apartment in order to effectuate the search warrant, he first looked at a mailbox that haddefendant's name on it. He further attested to acting as the evidence custodian at the apartment,and that he processed two cell phones, US currency, crack cocaine and sandwich bags. Adetective with the Broome County Sheriff's Office testified that he entered the apartment andrecovered a box of fold-top sandwich bags from the kitchen counter and he also discovered loosesandwich bags in the toilet. A police officer and former special investigator for the BinghamtonPolice Department testified that he found a white cell phone, a wallet with identification and$580 in cash on defendant's person. A detective with the same department testified that, inBroome County, crack cocaine is commonly packaged for sale in a plastic sandwich bag that istied off into a knot, known as a "corner wrap." He also testified that the type of sandwich bagsfound in defendant's apartment are the type used to package cocaine. The detective furthertestified that the two cell phones, cash, sandwich bags and large quantity of drugsfound—and the specific way that they [*4]werepackaged—were indicative of defendant's intent to sell the cocaine rather than merelypossessing it for personal use. Lastly, he testified that he found a large quantity of suspectedcrack cocaine hidden behind a picture on the wall—on the ledge of theframe—located in a corner wrap of a sandwich bag inside of another bag, along with ablack cell phone and cash on the bed. A forensic scientist for the State Police testified that thesubstance found in defendant's apartment tested positive for cocaine and weighed 16.398 grams,which was over one-half ounce. Finally, the People offered recordings of telephone calls thatdefendant made while he was incarcerated. In one call, defendant states that he received aneviction notice and wanted to ensure that someone got everything out of his house. In anothercall he stated that no one was living with him, but other people were coming by his apartmentevery day.
Viewing the evidence in the light most favorable to the People, applying the principle ofconstructive possession, and affording the People all permissible inferences, we find that theevidence was legally sufficient to establish that defendant exercised dominion and control overthe apartment where the cocaine and sandwich bags were found, thus establishing his knowingpossession and intent to sell the cocaine (see People v Kalabakas, 183 AD3d 1133, 1140 [2020], lvdenied 35 NY3d 1067 [2020]; People v Cowan, 177 AD3d at 1177; People v Colon, 177 AD3d 1086,1088 [2019]). Although a different verdict would not have been unreasonable if the jury hadcredited defendant's argument that he did not have knowing possession of the drugs due to thenumerous people that frequented his apartment, viewing the evidence in a neutral light anddeferring to the jury's credibility determinations, we find that defendant's convictions are notagainst the weight of the evidence (seePeople v Seecoomar, 174 AD3d 1154, 1157 [2019], lv denied 34 NY3d 1019[2019]; People v Spencer, 169AD3d 1268, 1270 [2019], lv denied 34 NY3d 938 [2019]; People v Shabazz, 177 AD3d1170, 1172 [2019]).
Defendant lastly contends that the sentence imposed was harsh and excessive and should bereduced due to his poor health, prior attempts of drug rehabilitation and less than overwhelmingevidence presented at trial. "It is well settled that a sentence that falls within the permissiblestatutory ranges will not be disturbed unless it can be shown that the sentencing court abused itsdiscretion or that extraordinary circumstances exist warranting a modification in the interest ofjustice" (People v Walker, 191AD3d 1154, 1160 [2021] [internal quotation marks and citations omitted], lv denied37 NY3d 961 [2021]). In light of defendant's criminal history, including that he is a secondfelony offender, that the sentence was less than the maximum term allowed, coupled withstatements that defendant made to a probation officer during the presentence investigationinterview, we discern [*5]no extraordinary circumstances orabuse of discretion that would warrant a modification of the sentence (see People v Infinger, 194 AD3d1183, 1188 [2021], lv denied 37 NY3d 965 [2021]; People v Warner, 194 AD3d 1098,1106 [2021], lv denied 37 NY3d 1030 [2021]; People v Bombard, 187 AD3d 1417, 1420 [2020]).
Lynch, J.P., Aarons, Pritzker and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.