People v. Farmer

• Court: New York Supreme Court — Appellate Division
• Citation: People v. Farmer, 136 A.D.3d 1410, 25 N.Y.S.3d 505 (N.Y. App. Div. 2016)
• Decision Date: 11 February 2016
• Parties: The PEOPLE of the State of New York, Respondent, v. Douglas FARMER, Defendant–Appellant.

136 A.D.3d 1410

25 N.Y.S.3d 505

The PEOPLE of the State of New York, Respondent,

v.Douglas FARMER, Defendant–Appellant.

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

Feb. 11, 2016.

Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant.

William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.

PRESENT: SMITH, J.P., PERADOTTO, CARNI, WHALEN, and DeJOSEPH, JJ.

MEMORANDUM:

On appeal from a judgment convicting him upon a jury verdict of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ), criminal possession of a controlled substance in the fifth degree (§ 220.06[5] ), and two counts of criminally using drug paraphernalia in the second degree (§ 220.50[2], [3] ), defendant contends that County Court erred in refusing to suppress evidence seized by parole officers during the search of his apartment because the search was unlawful. We reject that contention. We conclude that "the record supports the court's determination that the search was ‘rationally and reasonably related to the performance of the parole officer's duty’ and was therefore lawful" (People v. Johnson, 94 A.D.3d 1529, 1531–1532, 942 N.Y.S.2d 738, lv. denied 19 N.Y.3d 974, 950 N.Y.S.2d 357, 973 N.E.2d 767, quoting People v. Huntley, 43 N.Y.2d 175, 181, 401 N.Y.S.2d 31, 371 N.E.2d 794 ). Indeed, " defendant's parole officer testified that he alone made the decision to include defendant on the list of parolees to be searched, and that he was motivated to do so by legitimate reasons related to defendant's status as a parolee" (id. at 1532, 942 N.Y.S.2d 738 ). His testimony established that defendant's placement on a search detail list was motivated by "information supplied by [a confidential informant that] provided [defendant's parole officer with] a reasonable basis to believe that defendant was selling drugs" (People v. Felder, 272 A.D.2d 884, 884, 708 N.Y.S.2d 774, lv. denied 95 N.Y.2d 905, 716 N.Y.S.2d 646, 739 N.E.2d 1151 ; see People v. Nappi, 83 A.D.3d 1592, 1593–1594, 922 N.Y.S.2d 669, lv. denied 17 N.Y.3d 820, 929 N.Y.S.2d 808, 954 N.E.2d 99 ; People v. Johnson, 54 A.D.3d 969, 970, 864 N.Y.S.2d 132, lv. denied 16 N.Y.3d 798, 919 N.Y.S.2d 515, 944 N.E.2d 1154 ). To the extent that defendant challenges that testimony, we "afford deference to the court's determination that the parole officer's testimony was credible" (Johnson, 94 A.D.3d at 1532, 942 N.Y.S.2d 738 ), and we conclude that there is no basis on this record to disturb the court's determination. The court thus properly determined that "[t]he search, initiated by the parole officer based upon information that defendant was selling drugs ..., was substantially related to the performance of the parole officer's duty to detect and prevent parole violations" (People v. Smith, 234 A.D.2d 1002, 1002, 651 N.Y.S.2d 807, lv. denied 89 N.Y.2d 988, 656 N.Y.S.2d 747, 678 N.E.2d 1363 ).

Contrary to defendant's further contention, inasmuch as the search was initiated and conducted by the Division of Parole, and was in furtherance of parole purposes and related to the parole officers' duties, the fact that a police officer provided the parole officers with assistance in gaining entry to the apartment in order to facilitate the search does not demonstrate that the parole officers acted as agents or conduits for the police (see People v. Vann, 92 A.D.3d 702, 703, 938 N.Y.S.2d 182, lv. denied 19 N.Y.3d 868, 947 N.Y.S.2d 417, 970 N.E.2d 440 ; see also Johnson, 94 A.D.3d at 1532, 942 N.Y.S.2d 738 ; Johnson, 54 A.D.3d at 970, 864 N.Y.S.2d 132 ; People v. Peterson, 6 A.D.3d 363, 364, 777 N.Y.S.2d 48, lv. denied 3 N.Y.3d 710, 785 N.Y.S.2d 38, 818 N.E.2d 680 ). Indeed, we conclude that "the assistance of police officers at the scene did not render the search a police operation" (Vann, 92 A.D.3d at 703, 938 N.Y.S.2d 182 ), and the record does not establish that the entry into defendant's apartment was otherwise unlawful.

Defendant also contends that the conviction is not supported by legally sufficient evidence and that the verdict is against the weight of the evidence on the ground that the People failed to show constructive possession of the drugs and drug paraphernalia by demonstrating that defendant " ‘had dominion and control over the area where the contraband was found’ " (People v. Davis, 101 A.D.3d 1778, 1779, 957 N.Y.S.2d 803, lv. denied 20 N.Y.3d 1060, 962 N.Y.S.2d 611, 985 N.E.2d 921 ; see Penal Law § 10.00[8] ). We conclude that defendant's contentions are without merit. Each of the crimes with which defendant was charged required proof of knowing possession (see Penal Law §§ 220.06[5] ; 220.16[1]; 220.50[2], [3] ). Under a theory of constructive possession, "the People must show that the defendant exercised ‘dominion or control’ over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized" (People v. Manini, 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563 ). Nonetheless, "exclusive access is not required" (People v. Nichol, 121 A.D.3d 1174, 1177, 994 N.Y.S.2d 691, lv. denied 25 N.Y.3d 1205, 16 N.Y.S.3d 527, 37 N.E.3d 1170 ; see People v. Torres, 68 N.Y.2d 677, 679, 505 N.Y.S.2d 595, 496 N.E.2d 684 ; People v. Fuller, 168 A.D.2d 972, 973, 564 N.Y.S.2d 918, lv. denied 78 N.Y.2d 922, 573 N.Y.S.2d 475, 577 N.E.2d 1067 ). Here, the People established that defendant was living in an efficiency apartment as the sole tenant, and that his parole officer had conducted various home visits with defendant at that apartment (see Davis, 101 A.D.3d at 1779–1780, 957 N.Y.S.2d 803 ). Despite defendant's testimony that other people had access to the apartment, we conclude that the circumstances here provided the jury with " a sufficient basis ... to conclude that ... defendant [was] guilty of constructive possession of [the] contraband found within the apartment" (Torres, 68 N.Y.2d at 679, 505 N.Y.S.2d 595, 496 N.E.2d 684 ). Thus, viewed in the light most favorable to the People, the evidence is legally sufficient to establish that he had dominion and control over the area where the contraband was found (see Davis, 101 A.D.3d at 1780, 957 N.Y.S.2d 803 ; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ) and, viewing the evidence in light of the elements of these possessory crimes in this jury trial (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict is not against the weight of the evidence (see Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ; Davis, 101 A.D.3d at 1780, 957 N.Y.S.2d 803 ). To the extent that defendant contends that the drugs and drug paraphernalia were "planted" in his apartment, we note that "[i]t is well settled that issues of credibility are best determined by the jury, given its opportunity to observe the demeanor of the witnesses" and, here, "[i]t cannot be said that the jury failed to give the evidence the weight it should be accorded" (People v. Blocker, 281 A.D.2d 943, 944, 723 N.Y.S.2d 299, lv. denied 96 N.Y.2d 826, 729 N.Y.S.2d 446, 754 N.E.2d 206 ; see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).

We agree with defendant, however, that the court abused its discretion in sentencing him as a second felony drug offender without affording him the opportunity to substantiate his constitutional challenge to the predicate felony conviction with the transcripts...