People v. Berry
| Decision Date | 11 March 2004 |
| Docket Number | 13351. |
| Citation | 2004 NY Slip Op 01625,773 N.Y.S.2d 181,5 A.D.3d 866 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOEY BERRY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Appeal from a judgment of the County Court of Albany County (Ryan, J.), rendered July 26, 2001, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree (two counts) and criminal possession of a controlled substance in the third degree.
On September 30, 2000, at approximately 1:05 A.M., police officers stopped defendant's car for a traffic violation and seized him when he attempted to run away. They then retrieved a plastic bag that defendant threw away during their struggle and a loaded revolver found on the driver's side of the car's front seat. The bag contained 28 pieces of crack cocaine individually wrapped in cellophane. Defendant was arrested and initially charged in a two-count indictment with criminal possession of a weapon in the second degree and criminal possession of a controlled substance in the third degree. The People announced their readiness for trial on January 26, 2001. On April 4, 2001, defendant was charged in a superseding indictment based upon the same underlying facts with one count of criminal possession of a weapon in the second degree, two counts of criminal possession of a weapon in the third degree and one count of criminal possession of a controlled substance in the third degree. Following a jury trial, defendant was convicted of each of the four counts. He now appeals.
Initially, we find that County Court did not err in permitting the police officers to testify as to whether the quantity and packaging of the cocaine were consistent with an intent to sell (see People v Wright, 283 AD2d 712, 714 [2001], lv denied 96 NY2d 926 [2001]; People v Ramos, 248 AD2d 334, 335 [1998], lv denied 92 NY2d 859 [1998]). The admissibility and extent of expert testimony is addressed to the sound discretion of the trial court and the record here demonstrates that the police officers had sufficient experience and training from which County Court could conclude that their opinions were reliable (see People v Cronin, 60 NY2d 430, 433 [1983]; People v Tarver, 292 AD2d 110, 115 [2002], lv denied 98 NY2d 702 [2002]). To the extent that the officers went further and actually stated that defendant intended to sell the cocaine, we find no prejudice in view of the other overwhelming evidence that defendant possessed the drugs with intent to sell rather than for his personal use (see People v Tarver, supra at 115).
County Court also did not err in refusing to submit the charge of criminal possession of a controlled substance in the seventh degree as a lesser-included offense of criminal possession of a controlled substance in the third degree. While it is true that one cannot commit this crime in the third degree without also committing it in the seventh degree (see People v Bond, 239 AD2d 785, 786 [1997], lv denied 90 NY2d 891 [1997]), no reasonable view of the evidence here would support a finding that defendant committed the lesser but not the greater crime (see People v Glover, 57 NY2d 61, 64 [1982]; People v Bond, supra at 786).
Equally unavailing is defendant's contention that he was denied his right to a speedy trial because more than six months elapsed between his arrest and the People's second statement of readiness for trial at the time of the superseding indictment. Since all charges in the superseding indictment were based on the same facts as the original indictment and proof of the original charges would also establish the additional charges, we conclude that the People's first statement of readiness also satisfied the speedy trial requirement with regard to...
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