People v. Harvey

• Citation: 945 N.Y.S.2d 802,96 A.D.3d 1098,2012 N.Y. Slip Op. 04426
• Parties: The PEOPLE of the State of New York, Respondent, v. Jacques HARVEY, Appellant.
• Decision Date: 07 June 2012
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 1098
945 N.Y.S.2d 802
2012 N.Y. Slip Op. 04426

The PEOPLE of the State of New York, Respondent,
v.
Jacques HARVEY, Appellant.

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

June 7, 2012.

[945 N.Y.S.2d 803]

Danise A. Stephens, Albany, for appellant.

P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), for respondent.

Before: PETERS, P.J., MERCURE, STEIN, McCARTHY and GARRY, JJ.

STEIN, J.

[96 A.D.3d 1098]Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered October 19, 2010, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fifth degree and criminally using drug paraphernalia in the second degree.

When police officer Josiah Jones arrived to investigate a trespass complaint at a residence in the City of Albany, he observed two individuals tap on the door and heard them saying “Five–O,” a term commonly used to warn others that police are nearby. After Jones and Officer Matthew Foley gained entrance into the building, they observed defendant drop something—which turned out to be a digital scale—and run upstairs. As defendant ran upstairs, objects which were later identified as rocks of crack cocaine fell from a T-shirt that he was holding. After [96 A.D.3d 1099]defendant was stopped and arrested, $853 in cash was found on his person.

Defendant was thereafter indicted and, following a jury trial, was convicted of criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fifth degree and criminally using drug paraphernalia in the second degree. He was sentenced to an aggregate prison term of seven years, to be followed by three years of postrelease supervision. Defendant now appeals and we affirm.

Defendant's conviction was not against the weight of the evidence. ¹ In order to convict defendant, the People were required to prove that defendant knowingly and unlawfully possessed cocaine weighing 500 milligrams or more with the intent to sell it ( seePenal Law § 220.06[5]; § 220.16[1] ), and that he knowingly possessed a scale used to weigh the cocaine under circumstances evincing his intent to unlawfully package or dispense it ( seePenal Law § 220.50[3] ). In addition to the testimony of Jones and Foley as to their observations of defendant when they entered the premises, a forensic scientist identified the presence of cocaine in the rocks and in residue found on the scale that had been in defendant's possession. Jones testified that, based on his

[945 N.Y.S.2d 804]

training and experience, the amount of cocaine found—4.3 grams—and the way in which it was broken up, together with the scale, the absence of a pipe or other means of smoking the cocaine, the $853 recovered from defendant's person, and the fact that defendant was unemployed, indicated that the cocaine was intended to be sold and not personally used by defendant.

On the other hand, Jameer Boyd—who was also arrested at the scene—testified for the defense that the cocaine and scale belonged to him and that he threw them when the police arrived. Testifying on his own behalf, defendant's explanation for his presence at the scene, his attempt to run from the police and his possession of $853 was that he had been gambling there. He testified that he saw Boyd weighing the cocaine and that, while at the police station, he had convinced Boyd to “own up” [96 A.D.3d 1100]to possessing the drugs, notwithstanding Boyd's repeated denials of ownership of the cocaine while at the scene. The accounts given by defendant and Boyd were in direct contrast, not only to the testimony of both police officers regarding their observations of defendant at the scene, but also to Foley's testimony that he had chased Boyd and did not see him drop anything. Jones and another officer further testified that, after defendant communicated with Boyd at the booking station, Boyd appeared distressed and spontaneously stated to Jones that the cocaine belonged to him and not to defendant.

Even if a different finding would not have been unreasonable,...