People v. Tarver

292 A.D.2d 110, 741 N.Y.S.2d 130, 2002 N.Y. App. Div. LEXIS 3631
Appellate Division of the Supreme Court of the State of New York·Decided April 11, 2002·Published·Cited by 33 cases

Opinion

OPINION OF THE COURT

Spain, J.

Following a jury trial, defendant was convicted as charged of two counts of criminal possession of a controlled substance in the third degree for knowingly and unlawfully possessing one-half ounce or more of cocaine, with intent to sell it (Penal Law § 220.16 [1], [12]). During an investigation by the City of Albany Police Department and the Federal Bureau of Investigation (hereinafter FBI), three controlled buys of crack cocaine were made from defendant in June 1997, two at her first floor apartment on First Street in Albany and one elsewhere. Thereafter, an Albany Police Department Detective obtained a no-knock warrant from Albany City Court to search defendant’s First Street apartment. After a combined Mapp/Franks/Huntley hearing, County Court denied defendant’s motion to suppress her postarrest statement to police finding that it was voluntary and denied suppression of all of the items seized from the apartment concluding, inter alia, that probable cause existed for City Court to issue the search warrant.

[113] At trial, members of the Albany Police Department testified that when the warrant was executed at approximately 7:30 a.m. on June 27,1997, they recovered bags containing powdered cocaine and rocks of crack cocaine from beneath a cutout in the floor boards of the closet in the rear bedroom in which defendant was found alone sleeping. The police also seized from the closet and the nightstand in that same bedroom, inter alia, in excess of five ounces of marihuana, razor blades and unused small plastic bags, as well as a variety of personal papers, identification documents and financial records. Defendant’s daughter and a male companion, who were present in the other bedroom, did not testify at trial. After being arrested and advised of her rights, defendant told police that she did not know about the cocaine. A State Police forensic scientist testified that the substance seized from defendant’s closet tested positive for cocaine and had an aggregate weight of 35.12 grams, i.e., more than one ounce. Notably, evidence regarding defendant’s sale of cocaine to confidential informants was not introduced at her trial.

Defendant was sentenced as an admitted second felony offender to concurrent terms of 11 to 22 years on each count. Defendant appeals, challenging, inter alia, the validity of the search warrant, the legal sufficiency and weight of the evidence, the admission of expert testimony concerning the packaging of drugs and drug paraphernalia and the sentence. We affirm.

With regard to the jury’s verdict, defendant argues that the People offered insufficient evidence that she constructively possessed the cocaine or that she intended to sell it. Our review of the record demonstrates that the evidence was more than sufficient for the jury to conclude that defendant exercised dominion and control over the bedroom in which the drugs were secreted and, thus, constructively possessed the drugs (see, People v Manini, 79 NY2d 561, 573-575; see also, Penal Law § 10.00 [8]). When the search warrant was executed, defendant was alone, sleeping in the bedroom. Significantly, among other property, her Social Security card, driver’s license, a completed application for public assistance, an identification card and letters regarding food stamps and disability benefits were on her nightstand showing this apartment to be her address. Also present were a utility bill in defendant’s name at that address, money orders identifying defendant as the sender and personal letters to defendant mailed to that address bearing postmarks from the prior month. Only female clothing and [114] shoes were observed in the bedroom and closet. Viewing the evidence in the light most favorable to the People and affording them every favorable inference (see, People v Acosta, 80 NY2d 665, 672; People v Bleakley, 69 NY2d 490, 495-496), we find that the evidence was sufficient to establish defendant’s constructive possession of the cocaine in the closet (see, People v Powell, 209 AD2d 879, 880-881, lv denied 84 NY2d 1037; see also, People v Johnson, 257 AD2d 439, lv denied 93 NY2d 900; People v Diaz, 220 AD2d 260; People v Tirado, 47 AD2d 193, affd 38 NY2d 955; cf. People v Swain, 241 AD2d 695, 696).

On the issue of defendant’s intent to sell, we conclude that the evidence amply justified the inference that she possessed the cocaine for resale, thereby establishing this element. Defendant possessed in her bedroom over 35 grams of powder and rocks of crack cocaine (more than one ounce) contained in several baggies — a quantity the experts testified exceeded the amount a user would typically possess — as well as heavy gauge razor blades with apparent cocaine residue, which the experts testified are used to cut crack cocaine rocks into smaller quantities for distribution. She also possessed plastic bags with the corners cut in which, according to the expert testimony, cocaine is ordinarily packaged for sale. We find this evidence sufficient to establish defendant’s intent to sell (see, People v Fallen, 249 AD2d 771, 771-772, lv denied 92 NY2d 879; People v Belo, 240 AD2d 964, 966, lv denied 91 NY2d 869; see also, People v Wright, 283 AD2d 712, 714, lv denied 96 NY2d 926; cf. People v Garcia, 86 NY2d 27, 35; People v Lamont, 227 AD2d 873, 875).

Further, “ ‘weighting] the relative probative force of [the] conflicting testimony and the * * * conflicting inferences that may be drawn from the testimony’ ” (People v Bleakley, supra at 495, quoting People ex rel. MacCracken v Miller, 291 NY 55, 62), we do not find that the verdict was contrary to the weight of the evidence. The discrepancies in the law enforcement officers’ testimony on which defendant relies regarding, for example, the number of nightstands in the bedroom, whether the various pieces of evidence were located inside or on top of the nightstand, whether there was a rug in the closet and the number of closets, were inconsequential and did not undermine the consistent testimony establishing defendant’s guilt of the crimes charged.

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People v. Tarver, 292 A.D.2d 110, 741 N.Y.S.2d 130, 2002 N.Y. App. Div. LEXIS 3631 (N.Y. Ct. App. 2002).

292 A.D.2d 110 (People v. Tarver) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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