People v. Acevedo

• Citation: 2014 N.Y. Slip Op. 04260,987 N.Y.S.2d 660,118 A.D.3d 1103
• Court: New York Supreme Court Appellate Division
• Decision Date: 12 June 2014
• Parties: The PEOPLE of the State of New York, Respondent, v. Hector ACEVEDO, Appellant.

118 A.D.3d 1103
987 N.Y.S.2d 660
2014 N.Y. Slip Op. 04260

The PEOPLE of the State of New York, Respondent,
v.
Hector ACEVEDO, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

June 12, 2014.

[987 N.Y.S.2d 662]

Craig S. Leeds, Albany, for appellant.

P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, GARRY and ROSE, JJ.

GARRY, J.

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered March 4, 2011, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the third degree, assault in the second degree and resisting arrest.

Defendant was charged by indictment with one count each of criminal possession of a controlled substance in the third degree, assault in the second degree, resisting arrest and unlawful possession of marihuana, stemming from allegations that, after heroin and marihuana were found in the vehicle he owned and was traveling in as a passenger, he physically assaulted the State Trooper who tried to place him under arrest and fled. The unlawful possession of marihuana charge was dismissed by County Court at trial for legally insufficient evidence. Defendant was convicted of the three remaining charges and sentenced, as a second felony offender, to an aggregate prison term of 14 years, followed by five years of postrelease supervision. Defendant appeals, and we affirm.

Defendant properly preserved the challenge now raised on appeal relative to the legal sufficiency of the proof of the elements of the crimes by his motion for dismissal at the close of the People's case addressing the claimed deficiencies in the evidence ( see People v. Battease, 74 A.D.3d 1571, 1573, 904 N.Y.S.2d 241 [2010],lv. denied15 N.Y.3d 849, 909 N.Y.S.2d 26, 935 N.E.2d 818 [2010];People v. Roberts, 63 A.D.3d 1294, 1296, 881 N.Y.S.2d 520 [2009] ). However, upon review, and viewed in the light most favorable to the People, we are satisfied that “there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime[s] proved beyond a reasonable doubt” ( People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] [internal quotation marks and citations omitted]; see People v. Souffrant, 93 A.D.3d 885, 886, 939 N.Y.S.2d 190 [2012],lv. denied19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218 [2012] ).

The testimony at trial established that, at approximately 10:12 p.m. on November 19, 2009, State Troopers Jeffrey Devine and Eric Terraferma stopped a vehicle on Interstate 90 (hereinafter I–90) westbound after observing that the vehicle had an inoperable headlight. Approaching the car, Devine, who had training and experience in drug detection, smelled an odor of marihuana coming from inside the vehicle. Defendant, the front-seat passenger, volunteered that he was the owner of the vehicle. After discussing his findings with his partner, Devine decided to search the vehicle. When the two Troopers returned, defendant rolled down the front passenger-side window, and Terraferma detected an odor of marihuana. Based on the odor, Devine conducted a pat-down search of the driver, and then returned him to the vehicle. Devine also conducted a pat-down search of defendant and the rear-seat passenger, but had them remain outside of the vehicle.

[987 N.Y.S.2d 663]

As Devine leaned into the vehicle to notify the driver that he was going to conduct a search, he observed a small bag on the center console containing what he believed to be marihuana, and a small black bag protruding out of the center console in the front-passenger seat which, upon inspection, he determined contained heroin. Subsequent examination of the black bag established that it contained 299 glassine envelopes held together by rubber bands, a sample of which were tested and confirmed to contain heroin and cocaine. At trial a State Police investigator, who had training and experience in identifying whether narcotics are “packaged with the intent to sell,” testified that heroin is typically packaged for sale in glassine envelopes that are held together by rubber bands and that, in his experience, the most a heroin user can consume in one day is 20 glassine envelopes.

After initially seeing the heroin, Devine attempted to place defendant under arrest. Defendant pushed Devine away and took off on foot. A lengthy pursuit, spanning across I–90, and physical altercations between the two ensued, in the course of which defendant struck Devine numerous times in the head, body and face. After defendant was ultimately subdued, Devine was transported to the hospital and treated for injuries to his left knee, lower back and abrasions to his head and face. Devine testified that the combined injuries caused him “substantial pain” and prevented him from working for two weeks.

Based on the foregoing, we conclude that the evidence was legally sufficient to establish that defendant committed the crimes of criminal possession of a controlled substance in the third degree ( see People v. Souffrant, 93 A.D.3d at 887, 939 N.Y.S.2d 190;People v. Garcia, 30 A.D.3d 833, 835, 817 N.Y.S.2d 723 [2006] ), assault in the second degree ( see People v. Somerville, 72 A.D.3d 1285, 1287, 900 N.Y.S.2d 468 [2010];compare People v. Winchester, 14 A.D.3d 939, 941, 790 N.Y.S.2d 238 [2005],lv. denied5 N.Y.3d 796, 801 N.Y.S.2d 817, 835 N.E.2d 677 [2005] ) and resisting arrest ( see People v. Lepard, 83 A.D.3d 1214, 1216, 922 N.Y.S.2d 585 [2011],lv. denied18 N.Y.3d 925, 942 N.Y.S.2d 464, 965 N.E.2d 966 [2012];People v. Somerville, 72 A.D.3d at 1287, 900 N.Y.S.2d 468).

We do not find merit in defendant's assertion that County Court erred in denying his request to dismiss the indictment pursuant to CPL 210.35(5) on the basis that, among other things, certain aspects of Devine's suppression testimony differed from the testimony that he gave before the grand jury. While Devine's grand jury testimony as to which side of the vehicle he was standing on when he observed the contraband was inconsistent with his suppression testimony, this does not indicate that “ ‘prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice[d] the ultimate decision reached by the [g]rand [j]ury’ such that dismissal was required” ( People v. Lumnah, 81 A.D.3d 1175, 1177, 917 N.Y.S.2d 412 [2011],lv. denied16 N.Y.2d 897, 264 N.Y.S.2d 554, 212 N.E.2d 60 [2011], quoting People v. Huston, 88 N.Y.2d 400, 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362 [1996] ). Notably, without regard to where Devine was standing when he observed the contraband, he had probable cause to search the vehicle based on his previous detection of the odor of marihuana emanating from the vehicle ( see People v. Horge, 80 A.D.3d 1074, 1074–1075, 915 N.Y.S.2d 757 [2011] ).¹ Defendant's related contention

[987 N.Y.S.2d 664]

that the initial accusatory instruments ( seeCPL 100.05, 100.10[1], [4], [5]; 100.15) were facially deficient is rendered academic, as they were superseded by a valid grand jury indictment ( see People v. Watson, 105 A.D.3d 1264, 1265, 963 N.Y.S.2d 600 [2013];People ex rel. Van Steenburg v. Wasser, 69 A.D.3d 1135, 1136, 893 N.Y.S.2d 379 [2010],lv. dismissed and denied14 N.Y.3d 883, 903 N.Y.S.2d 338, 929 N.E.2d 401 [2010] ).

Defendant also challenges County Court's denial of his motion to suppress the contraband found in the vehicle, arguing that Devine's testimony should have been found incredible as a matter of law. County Court's resolution of the inconsistencies in Devine's testimony required credibility determinations, to which we accord deference ( see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977];People v. Portelli, 116 A.D.3d 1163, 1164, 983 N.Y.S.2d 355 [2014] ). Upon review, we find no reason to disturb the determination. Devine and Terraferma had authority to stop the vehicle being driven by Smith based upon their observation of an inoperable headlight ( seeVehicle and Traffic Law § 375 [2] [a][1]; People v. Merritt, 96 A.D.3d 1169, 1170, 946 N.Y.S.2d 306 [2012],lv. denied19 N.Y.3d 1027, 953 N.Y.S.2d 561, 978 N.E.2d 113 [2012];People v. Viele, 90 A.D.3d 1238, 1239, 935 N.Y.S.2d 171 [2011],lv. denied19 N.Y.3d 868, 947 N.Y.S.2d 417, 970 N.E.2d 440 [2012] ). Detecting an odor of marihuana emanating from the vehicle following the stop, the Troopers had probable cause to search the vehicle ( see People v. Horge, 80 A.D.3d at 1074–1075, 915 N.Y.S.2d 757;...