People v. Alberts

• Citation: 161 A.D.3d 1298,77 N.Y.S.3d 207
• Decision Date: 10 May 2018
• Docket Number: 107970
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert J. ALBERTS, Appellant.
• Court: New York Supreme Court — Appellate Division

161 A.D.3d 1298

77 N.Y.S.3d 207

The PEOPLE of the State of New York, Respondent,

v.Robert J. ALBERTS, Appellant.

107970

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

Calendar Date: March 30, 2018

Decided and Entered: May 10, 2018

Alexander W. Bloomstein, Hillsdale, for appellant.

Stephen D. Ferri, Special Prosecutor, Binghamton, for respondent.

Before: McCarthy, J.P., Clark, Mulvey, Aarons and Rumsey, JJ.

MEMORANDUM AND ORDER

Clark, J.

Appeals (1) from a judgment of the County Court of Cortland County (Campbell, J.), rendered July 30, 2015, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the second degree and unlawful manufacture of methamphetamine in the third degree, and (2) from a judgment of said court, rendered December 3, 2015, which resentenced defendant.

On an evening in June 2014, David Tobias of the Cortland County Sheriff's Department drove to the home of defendant's parents to investigate a tip that methamphetamine was being manufactured at that address. During the course of his investigation, Tobias made various observations that led him to believe that defendant and his two codefendants, Terry Maricle and Kristina Yerian, were manufacturing methamphetamine in a detached garage not far from the residence. Based on his belief that there was an active methamphetamine lab inside, Tobias twice entered the garage without a warrant, but he did not seize any evidence. The police subsequently obtained a warrant to search the garage and the residence and, upon execution of that warrant, seized various items of equipment, precursors, chemical reagents and solvents used in the manufacture of methamphetamine. Consequently, defendant was charged by indictment with criminal possession of a controlled substance in the second degree and unlawful manufacture of methamphetamine in the third degree. County Court denied defendant's subsequent motion to suppress, among other things, the items seized during the search. Defendant was thereafter jointly tried by a jury with his codefendants and ultimately convicted as charged.¹ County Court sentenced defendant to six years in prison and five years of postrelease supervision on the criminal possession of a controlled substance conviction and 2½ years in prison and one year of postrelease supervision on the unlawful manufacture of methamphetamine conviction, with the sentences to run concurrently.² Defendant appeals.

We affirm. Initially, we are unpersuaded by defendant's contention that his convictions are against the weight of the evidence. In a weight of the evidence review, we first assess whether, based on all of the credible evidence, a different verdict would have been unreasonable; where a different result would not have been unreasonable, we then " ‘weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ " to determine if the verdict is supported by the weight of the evidence ( People v. Romero, 7 N.Y.3d 633, 643, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006], quoting People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ; accord People v. Byrd, 152 A.D.3d 984, 986, 59 N.Y.S.3d 539 [2017] ). As relevant here, "[a] person is guilty of criminal possession of a controlled substance in the second degree when he or she knowingly and unlawfully possesses ... one or more preparations, compounds, mixtures or substances containing methamphetamine, its salts, isomers or salts of isomers and said preparations, compounds, mixtures or substances are of an aggregate weight of two ounces or more" ( Penal Law § 220.18[2] ). As relevant here, "[a] person is guilty of unlawful manufacture of methamphetamine in the third degree when he or she possesses at the same time and location, with intent to use, or knowing that another intends to use each such product to unlawfully manufacture, prepare or produce methamphetamine[,] ... [t]wo or more items of laboratory equipment and two or more precursors, chemical reagents or solvents in any combination" ( Penal Law § 220.73[1] ).

The trial evidence established that, at some point, defendant was placed inside of Tobias' patrol vehicle, that defendant had a glass of water within the vehicle and that Tobias later discovered white pills—which he recognized as pseudoephedrine, a precursor to methamphetamine—at the bottom of the water glass and on the floor of his vehicle. The evidence also established that, upon execution of the search warrant, the police seized—from the same area within the garage—precursors (specifically, blister packs for pseudoephedrine ), reagents (including drain opener, ammonium nitrate and muriatic acid), solvents (such as Coleman fuel, brake fluid and starting fluid) and equipment (namely, a pill grinder, a white pan, coffee filters, plastic tubing, a mask and glass jars) commonly used in the manufacture of methamphetamine. A state trooper involved in the search explained that the seized items, which could all be legally purchased, were typically used in the "one-pot" method of methamphetamine manufacture and that the search team had recovered two separate one-pots from the garage. The testimony demonstrated that several samples of liquid—weighing a total of roughly three ounces—were taken from the one-pots and that, although there were gaps and inconsistencies in the chain of custody, those samples ultimately tested positive for methamphetamine.

Because defendant was not found to be in physical possession of any of the seized items, the People had to establish that defendant constructively possessed the items by showing that he "exercised ‘dominion or control’ over the property by a sufficient level of control over the area in which the contraband is found" ( People v. Manini, 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563 [1992] ; see Penal Law § 10.00[8] ; People v. Carvajal, 6 N.Y.3d 305, 327, 812 N.Y.S.2d 395, 845 N.E.2d 1225 [2005] ). In that regard, the evidence established that the residence belonged to defendant's parents, and a voluntary statement given by Yerian to the police suggested that defendant resided with his parents. In addition, Tobias testified that, on the night in question, he had two encounters with defendant, separated by a 10–minute period when he left the residence and called his supervisor. Tobias stated that, on both occasions, it was defendant who emerged from the garage to meet him. Tobias also testified that, in response to his inquiries as to what he was doing inside the garage, defendant represented that he was having sex with a woman. Tobias further stated that defendant accompanied him into the garage during his first warrantless entry and that defendant protested his second warrantless entry.

It would not have been unreasonable for the jury to have acquitted defendant of both charges, as it could have found that defendant did not have dominion or control over the seized items, all of which could be plausibly found in a garage, by having a sufficient level of control over the garage (see People v. Graham, 138 A.D.3d 1242, 1243, 29 N.Y.S.3d 656 [2016], lv denied 28 N.Y.3d 930, 40 N.Y.S.3d 358, 63 N.E.3d 78 [2016] ). Additionally, with respect to the criminal possession charge, the jury could have also found that, due to the gaps and inconsistencies in the chain of custody, it could not be reasonably assured of the identity of the samples allegedly taken from the one-pots and, thus, that defendant possessed the requisite amount of methamphetamine (see generally People v. Beverly, 5 A.D.3d 862, 864, 772 N.Y.S.2d 763 [2004], lvs denied 2 N.Y.3d 796, 804, 781 N.Y.S.2d 295, 814 N.E.2d 467 [2004] ; People v. Howard, 305 A.D.2d 869, 870, 761 N.Y.S.2d 115 [2003], lv denied 100 N.Y.2d 583, 764 N.Y.S.2d 393, 796 N.E.2d 485 [2003] ; People v. Haggray, 173 A.D.2d 962, 964, 569 N.Y.S.2d 472 [1991], lv denied 78 N.Y.2d 966, 574 N.Y.S.2d 946, 580 N.E.2d 418 [1991] ). However, viewing the foregoing evidence in a neutral light and deferring to the jury's credibility determinations (see People v. Ford, 156 A.D.3d 1242, 1244, 68 N.Y.S.3d 566 [2017] ; People v. Cochran, 140 A.D.3d 1198, 1200, 34 N.Y.S.3d 189 [2016], lvs denied 28 N.Y.3d 970, 43 N.Y.S.3d 257, 66 N.E.3d 3 [2016] ), we are satisfied that defendant's convictions are not against the weight of the evidence.

Next, contrary to defendant's assertions, Tobias' warrantless entries into the garage were justified under the emergency exception to the warrant requirement. Under the Fourth Amendment of the U.S. Constitution and article I, § 12 of the N.Y. Constitution, warrantless entries into an individual's home are presumptively unreasonable, subject to certain carefully circumscribed exceptions (see United States v. Karo, 468 U.S. 705, 717, 104 S.Ct. 3296, 82 L.Ed.2d 530 [1984] ; People v. McBride, 14 N.Y.3d 440, 445, 902 N.Y.S.2d 830, 928 N.E.2d 1027 [2010], cert denied 562 U.S. 931, 131 S.Ct. 327, 178 L.Ed.2d 212 [2010] ; People v. Molnar, 98 N.Y.2d 328, 331, 746 N.Y.S.2d 673, 774 N.E.2d 738 [2002] ; People v. Knapp, 52 N.Y.2d 689, 694, 439 N.Y.S.2d 871, 422 N.E.2d 531 [1981] ). Under the N.Y. Constitution, the emergency exception to the warrant requirement permits "the police [to] make a warrantless entry into a protected area if three prerequisites are met: ‘(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property. (2) The search must not be primarily motivated by intent to arrest and seize evidence. (3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched’ " ( People v. Gibson, 117 A.D.3d 1317, 1318, 986 N.Y.S.2d 660 [2014], affd 24 N.Y.3d 1125, 3 N.Y.S.3d 320, 26 N.E.3d 1175 [2015], quoting People v. Mitchell, 39 N.Y.2d 173, 177–178, 383 N.Y.S.2d 246, 347 N.E.2d 607 [1976], ...