People v. Aziziandavidi

• Decision Date: 14 November 2012
• Parties: The PEOPLE, etc., respondent, v. Sosan AZIZIANDAVIDI, appellant.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 765
954 N.Y.S.2d 132
2012 N.Y. Slip Op. 07682

The PEOPLE, etc., respondent,
v.
Sosan AZIZIANDAVIDI, appellant.

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

Nov. 14, 2012.

[954 N.Y.S.2d 133]

Lynn W.L. Fahey, New York, N.Y. (Reyna E. Marder of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, Brooke E. Barnes, and Rona Kugler of counsel), for respondent.

RANDALL T. ENG, P.J., ANITA R. FLORIO, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

[100 A.D.3d 765]Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered October 30, 2009, convicting her of criminal possession of a controlled substance in the first degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the Supreme Court erred in permitting the People to elicit testimony that the narcotics found in the lining of the suitcases she was carrying could be converted into heroin is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Torres, 96 A.D.3d 881, 946 N.Y.S.2d 225;People v. Jones, 9 A.D.3d 374, 375, 779 N.Y.S.2d 583). However, we reach the issue pursuant to our interest of justice jurisdiction. Although evidence is relevant if it tends to prove the existence or nonexistence of a material fact, not all relevant evidence is admissible ( see People v. Primo, 96 N.Y.2d 351, 355, 728 N.Y.S.2d 735, 753 N.E.2d 164). A court has the discretion to exclude relevant evidence if its probative value is outweighed by risks such as “undue prejudice to the opposing party, confusing the issues or misleading the jury” ( id. at 355, 728 N.Y.S.2d 735, 753 N.E.2d 164). “Evidence ‘of merely slight, remote or conjectural significance’ will ordinarily be insufficiently probative to outweigh these countervailing risks” ( id. at 355–356, 728 N.Y.S.2d 735, 753 N.E.2d 164, quoting People v. Feldman, 299 N.Y. 153, 169–170, 85 N.E.2d 913). Contrary to the People's contention, the testimony that the 32

[954 N.Y.S.2d 134]

pounds of narcotics found in the suitcases could be converted into heroin, as well as the additional testimony that the street value of the narcotics would be approximately $4.5 million if so converted, was of insufficient[100 A.D.3d 766]probative significance in proving the elements of knowing possession ( seePenal Law § 220.21[1] )...