People v. Wilson

100 A.D.3d 1045, 952 N.Y.S.2d 837
Appellate Division of the Supreme Court of the State of New York·Decided November 1, 2012·Published·Cited by 4 cases

Opinion

Egan Jr., J.

Appeal from a judgment of the County Court of Greene County (Pulver Jr., J.), rendered April 5, 2011, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the third degree (two counts) and criminal sale of a controlled substance in the third degree.

Defendant was indicted and charged with various drug crimes in connection with his sale of crack cocaine to a confidential informant (hereinafter Cl) on two separate occasions in August 2009. Following a jury trial, defendant was convicted of criminal possession of a controlled substance in the third degree (two counts) and criminal sale of a controlled substance in the third degree and sentenced to an aggregate prison term of 18 years with four years of postrelease supervision. This appeal by defendant ensued.

Defendant initially contends that the verdict is not supported [1046]*1046by legally sufficient evidence and, further, is against the weight of the evidence. We disagree. A person is guilty of criminal possession of a controlled substance in the third degree when he or she “knowingly and unlawfully possesses ... a narcotic drug with the intent to sell it” (Penal Law § 220.16 [1]). Where, as here, the People proceed under the theory of constructive possession, the proof must establish “that defendant exercised dominion and control over the property or the person who actually possessed the drugs” (People v Miller, 13 AD3d 890, 891 [2004]; see People v Buchanan, 95 AD3d 1433, 1433-1434 [2012]; People v Arrington, 31 AD3d 801, 803 [2006], lv denied 7 NY3d 865 [2006]; People v Leader, 27 AD3d 901, 903 [2006]). Similarly, a person is guilty of criminal sale of a controlled substance in the third degree when he or she “knowingly and unlawfully sells ... a narcotic drug” (Penal Law § 220.39 [1]).

Here, the testimony offered by the Cl (who had known defendant for a number of years), the undercover officers (who accompanied the Cl on the dates in question and observed portions of the drug transactions) and the investigators (who provided the Cl with buy money and strip searched him before and after the subject transactions to ensure that he was not concealing any drugs, currency or contraband), together with the audio recordings and the positive test results, establish that the verdict is supported by legally sufficient evidence and, further, is not against the weight of the evidence (see People v Heaney, 75 AD3d 836, 837 [2010], lv denied 15 NY3d 852 [2010]; People v Rolle, 72 AD3d 1393, 1396 [2010], lv denied 16 NY3d 745 [2011]; People v Chatham, 55 AD3d 1045, 1046 [2008], lv denied 14 NY3d 839 [2010]; People v Thaddies, 50 AD3d 1249, 1250 [2008], lv denied 10 NY3d 965 [2008]; People v Golden, 24 AD3d 806, 806-807 [2005], lv denied 6 NY3d 813 [2006]). Contrary to defendant’s assertion, there is sufficient credible evidence in the record to establish that he exercised dominion and control over the location where the August 18, 2009 sale occurred. Additionally, with respect to the August 26, 2009 transaction, the CPs testimony is sufficient to demonstrate that defendant possessed crack cocaine with the intent to sell on that date. Although the Cl was an admitted drug user and agreed to cooperate with the authorities in an effort to reduce certain outstanding criminal charges against him, his credibility was fully vetted at trial (see infra), and we cannot say that his testimony was “inherently incredible or improbable” (People v Heaney, 75 AD3d at 837). Accordingly, according due deference to the jury’s credibility determinations (see People v Rolle, 72 AD3d at 1396; People v Pearson, 69 AD3d 1226, 1228 [2010], lv denied 15 NY3d 755 [2010]), we discern no basis upon which to disturb the verdict.

[1047]*1047To the extent that defendant contends that County Court improperly limited defense counsel’s cross-examination of the Cl, again we disagree. “[Although a criminal defendant is guaranteed the right to confront all adverse witnesses through cross-examination, that right is not unlimited” (People v Francisco, 44 AD3d 870, 870 [2007], lv denied 9 NY3d 1033 [2008] [citations omitted]). Indeed, the scope and extent of cross-examination is a matter committed to the trial court’s sound discretion and, to that end, the court will be afforded “wide latitude to limit cross-examination on collateral matters designed to impeach . . . credibility” (People v Love, 307 AD2d 528, 532 [2003], lv denied 100 NY2d 643 [2003]; see People v Francisco, 44 AD3d at 870; People v Dickerson, 309 AD2d 966, 968 [2003], lv denied 1 NY3d 596 [2004]). Here, County Court permitted counsel to cross-examine the Cl at length regarding his prior convictions, but limited the extent to which counsel could delve into the underlying facts of each conviction, reasoning that such minutia did not bear upon credibility and would serve only to confuse the jury. Based upon our review of the record as a whole, we find that County Court did not abuse its discretion in this regard.

Nor are we persuaded that County Court erred in denying defendant’s motion for a mistrial based upon testimony elicited from Heath Wood regarding defendant’s prior bad acts. Although “evidence of prior bad acts or uncharged crimes is inadmissible to prove the crime charged or to show a defendant’s propensity to commit [a particular] crime, an exception to this rule exists where the evidence is admitted to show a defendant’s intent, especially after the defendant has put his or her intent in issue” (People v Wright, 5 AD3d 873, 875 [2004], lv denied 3 NY3d 651 [2004] [citation omitted]; see People v Echavarria, 53 AD3d 859, 863 [2008], lv denied 11 NY3d 832 [2008]), which is precisely what occurred here. Following circumspect questioning by the People on direct examination, defense counsel devoted the bulk of his cross-examination to attempting to portray Wood — at whose home the August 18, 2009 transaction occurred — as the true drug dealer. In response to that questioning, the People asked Wood on redirect, “Who was the drug dealer?” and “[W]hose drugs were . . . sold?,” and Wood, in turn, identified defendant. As defendant’s prior drug sales were probative of both his knowing possession and intent to sell (see People v Echavarria, 53 AD3d at 863; People v Wright, 5 AD3d at 875-876), and as our review of the record reveals that the probative value of such evidence outweighed its prejudicial effect, County Court did not err in either admitting this [1048]*1048testimony or denying defendant’s subsequent motion for a mistrial.

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People v. Wilson, 100 A.D.3d 1045, 952 N.Y.S.2d 837 (N.Y. Ct. App. 2012).

100 A.D.3d 1045 (People v. Wilson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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