People v. Kalabakas

• Decision Date: 21 May 2020
• Docket Number: 111742
• Citation: 124 N.Y.S.3d 448,183 A.D.3d 1133
• Parties: The PEOPLE of the State of New York, Respondent, v. Vasilios KALABAKAS, Appellant.
• Court: New York Supreme Court — Appellate Division

183 A.D.3d 1133
124 N.Y.S.3d 448

The PEOPLE of the State of New York, Respondent,
v.
Vasilios KALABAKAS, Appellant.

111742

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

Calendar Date: March 24, 2020
Decided and Entered: May 21, 2020

Steven M. Sharp, Albany, for appellant.

P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.

Before: Clark, J.P., Mulvey, Devine, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Colangelo, J.

On March 15, 2018 at approximately 10:27 p.m., State Trooper Daniel Mauro effected a traffic stop on Interstate 87 in Albany County of a vehicle with darkly tinted windows that was being driven erratically by its owner, Ernesto Bocio, in which defendant was a passenger. Upon approach, Mauro detected the strong odor of burnt and raw marihuana coming from both sides of the vehicle, observed marihuana shake – flakes of vegetation – on defendant and Bocio's shirts and inside the vehicle, and discovered that Bocio was driving with a suspended license. Bocio and defendant were asked to exit the vehicle, were observed to be very nervous and provided somewhat inconsistent accounts of their travel plans, although both indicated that they were headed to the City of Buffalo, Erie County. Bocio admitted to smoking marihuana earlier and was found to be in possession of cocaine and $4,000 in cash. During a search of defendant, he became uncooperative, and both defendant and Bocio were put in handcuffs for officer safety. A search of the vehicle by Mauro and another trooper disclosed several bags of cocaine, crack cocaine and heroin, a bag of pills identified as Alprazolam, a controlled substance, and a bag of leafy marihuana, all secreted in a hidden after-market compartment in the dashboard. The street value of the controlled substances, described by police investigators trained in drug trafficking practices as uncut and

124 N.Y.S.3d 453

pure, was estimated to be in the hundreds of thousands of dollars after mixing in fillers and packaging it for sale. Also found in the compartment were a loaded, operable semi-automatic.40 caliber pistol and tobacco leaves used to roll marihuana joints. An iPhone, a flip-phone and Bocio's wallet were also recovered from the front center console of the vehicle next to the shift. Defendant and Bocio were then arrested. It was later determined that the hidden compartment was mechanically operable using a magnet found in Bocio's wallet.

Defendant was thereafter charged, in a joint indictment with Bocio, with one count each of the crimes of criminal possession of a controlled substance in the first, second, fifth and seventh degrees, three counts of criminal possession of a controlled substance in the third degree and one count of criminal possession of a weapon in the second degree, as well as the violation of unlawful possession of marihuana. Supreme Court denied defendant's motion to suppress his statements to police and the physical evidence seized from the vehicle, but granted defendant's motion for a separate trial and the matter proceeded to a jury trial. Upon the People's motion, the court dismissed the charge of criminal possession of a controlled substance in the fifth degree, and defendant was convicted of the remaining charges. Defendant was sentenced for his conviction of criminal possession of a controlled substance in the first degree to a prison term of eight years, followed by five years of postrelease supervision, and to lesser concurrent prison terms followed by periods of postrelease supervision for the remaining felony convictions.¹ Defendant appeals.

We affirm. Initially, we are unpersuaded by defendant's contention that count 1 of the indictment – charging criminal possession of a controlled substance in the first degree – impermissibly combined his possession of heroin and cocaine to satisfy the eight-ounce aggregate weight threshold element of that crime and was, therefore, facially duplicitous. Contrary to the People's contention, this challenge was preserved by defendant's pretrial motion to dismiss the indictment as duplicitous. In response, the People specifically objected to dismissal by arguing that count 1 properly aggregated the weight of two narcotic drugs found in defendant's possession to reach the weight threshold. Although the record does not reflect that Supreme Court expressly ruled on this aspect of defendant's motion, given that defendant timely filed a motion raising this claim and seeking a ruling, he "is deemed to have thereby protested the court's ... failure to rule ... sufficiently to raise a question of law with respect to such ... failure regardless of whether any actual protest thereto was registered" ( CPL 470.05[2] ).² Addressing the merits, defendant's challenge to count 1 does not withstand analysis. As relevant here, criminal possession of a controlled substance in the first degree requires proof that defendant knowingly and unlawfully possessed "one or more ... substances containing a narcotic drug and said ... substances are of an aggregate weight of eight ounces or more" ( Penal Law § 220.21[1] [emphases added] ).³ To the extent that defendant's

124 N.Y.S.3d 454

challenge appears to be one of statutory interpretation, it lacks merit, as that subsection contemplates that a person can be charged with possessing more than one narcotic drug and that the weights of the narcotics may be combined to reach the threshold weight requirement. This is supported by the use of the plural "one or more ... substances " that contain "a narcotic drug," and that "said ... substances" must have the requisite weight ( Penal Law § 220.21[1] [emphasis added] ). This statute does not, on its face, require possession of a single narcotic drug and, instead, by its terms, permits prosecution for possession of more than one substance, each containing "a narcotic drug." Thus, the singular phrase, "a narcotic," refers to what must be found in each of the "one or more substances" possessed, and does not require that the narcotic be the same in each of the substances. As such, "giving effect to the plain meaning [of the statutory text" ( People v. Roberts , 31 N.Y.3d 406, 418, 79 N.Y.S.3d 597, 104 N.E.3d 701 [2018] [internal quotation mark and citation omitted]; accord People v. Wager , 173 A.D.3d 1352, 1353, 103 N.Y.S.3d 627 [2019], lv denied 34 N.Y.3d 1020, 114 N.Y.S.3d 754, 138 N.E.3d 483 [2019] ), we find that the statutory language permits the substances possessed to contain either the same or different narcotics.

With regard to defendant's claim of duplicity as to count 1, a "count is duplicitous when it charges more than one crime that is completed by a discrete act in the same count" ( People v. Madsen , 168 A.D.3d 1134, 1137, 90 N.Y.S.3d 396 [2019] ; see People v. Alonzo , 16 N.Y.3d 267, 269, 920 N.Y.S.2d 302, 945 N.E.2d 495 [2011] ). Count 1 charged defendant with "possess[ing] a substance containing cocaine, a narcotic drug, and a substance containing heroin, a narcotic drug, with an aggregate weight of eight (8) ounces or more" (emphasis added). We conclude that this count was not facially duplicitous as it did not charge more than one crime committed by discrete acts but, rather, charged defendant with one crime, i.e., simultaneously possessing two narcotic drugs, cocaine and heroin, in substances whose combined weight satisfied the statutory threshold.

To that end, Penal Law § 220.20 (1), like other drug possession statutes (see Penal Law art 20), "does not distinguish between the types of narcotics possessed, but treats all drugs classified as narcotics interchangeably" ( People v. Martin , 153 A.D.2d 807, 808, 545 N.Y.S.2d 287 [1989], lv denied 74 N.Y.2d 950, 550 N.Y.S.2d 284, 549 N.E.2d 486 [1989] ; see Penal Law § 220.00[7] ). Thus, it has been recognized that "there is no basis for multiple counts [of criminal possession of narcotics with intent to sell] under [ Penal Law § 220.16 ] based on the fact that the narcotics [possessed upon arrest] happen to be of different types" ( People v. Martin , 153 A.D.2d at 808, 545 N.Y.S.2d 287 ; see People v. Miller , 15 A.D.3d 265, 265, 789 N.Y.S.2d 423 [2005], lvs denied 4 N.Y.3d 833, 833, 796 N.Y.S.2d 588, 829 N.E.2d 681 [2005] ; People v. Maldonado , 271 A.D.2d 328, 328, 706 N.Y.S.2d 876 [2000], lv denied 95 N.Y.2d 867, 715 N.Y.S.2d 222, 738 N.E.2d 370 [2000] ; People v. Eustate , 265 A.D.2d 229, 230, 697 N.Y.S.2d 260 [1999], lv denied 94 N.Y.2d 919, 708 N.Y.S.2d 358, 729 N.E.2d 1157 [2000] ). We discern nothing impermissible with combining the weight of the substances containing more than one narcotic that defendant simultaneously possessed to reach the statutory aggregate weight (compare

124 N.Y.S.3d 455

People v. Brown , 99 N.Y.2d 488, 493, 758 N.Y.S.2d 602, 788 N.E.2d 1030 [2003] ). Importantly, the gravamen of this highest grade of criminal possession of a controlled substance is the aggravating factor, i.e., the knowing possession of narcotic-laden substances with an aggregate weight of eight ounces or more, and the seriousness of defendant's conduct is not altered or reduced by the fact that he simultaneously possessed substances containing more than one type of narcotic (see People v. Buckley , 75 N.Y.2d 843, 846, 552 N.Y.S.2d 912, 552 N.E.2d 160 [1990] [simultaneous possession of stolen property belonging to...