People v. Mallory

• Decision Date: 30 December 1996
• Docket Number: No. 1,1
• Citation: 234 A.D.2d 913,651 N.Y.S.2d 793
• Parties: PEOPLE of the State of New York, Respondent, v. Larry MALLORY, Appellant. (Appeal)
• Court: New York Supreme Court — Appellate Division

Page 793

651 N.Y.S.2d 793

234 A.D.2d 913

PEOPLE of the State of New York, Respondent, v. Larry MALLORY, Appellant. (Appeal No. 1.)

Supreme Court, Appellate Division Fourth Department.

Dec. 30, 1996.

Anthony Leonardo, Jr., Rochester, for Appellant.

Howard R. Relin by Robert Mastrocola, Rochester, for Respondent.

Before DENMAN, P.J., and LAWTON, CALLAHAN, BALIO and BOEHM, JJ.

MEMORANDUM.

Defendant appeals from a judgment convicting him following a jury trial of criminal sale of a controlled substance in the first degree (Penal Law § 220.43[1]; § 20.00), criminal possession of a controlled substance in the second degree (Penal Law § 220.18[1]; § 20.00), criminal sale of a controlled substance in the second degree (Penal Law § 220.41[1]; § 20.00), and three counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1], [12]; § 20.00), arising out of two separate sales of cocaine to an undercover police officer. Defendant was also convicted of criminal possession of a controlled substance in the first degree (Penal Law § 220.21[1] ) and criminal possession of marihuana in the third degree (Penal Law § 221.20), arising out of the seizure of over 30 ounces of cocaine and almost one pound of marihuana from the trunk of a car registered to defendant's wife. From our review of the record, we conclude that the evidence at trial is sufficient to establish that defendant constructively possessed the contraband found in the trunk of his wife's car. We reject defendant's contention that the proof of constructive possession is not sufficient to exclude to a moral certainty every reasonable hypothesis but that of guilt. The evidence discloses that defendant was seen operating that automobile at the time of the sales of cocaine; that the automobile was registered to defendant's wife; that, at the time of his arrest, defendant had keys that fit the door and trunk of the automobile; that the automobile was parked in front of a house that defendant owned; and that defendant's fingerprints were found on three pieces of paper in which some of the cocaine was wrapped. Viewing the evidence in the light most favorable to the People (see, People v. Williams, 84 N.Y.2d 925, 926, 620 N.Y.S.2d 811, 644 N.E.2d 1367), we conclude that the evidence is sufficient to establish defendant's dominion and control over the contraband found in the trunk of the car (see, People v. Beriguette, 199 A.D.2d 515, 517, 605 N.Y.S.2d 759, affd. 84 N.Y.2d 978, 622 N.Y.S.2d 497, 646 N.E.2d 799, rearg. denied 85 N.Y.2d 924, 627 N.Y.S.2d 326, 650 N.E.2d 1328; People v. Mejie, 186 A.D.2d 155, 587 N.Y.S.2d 716; People v. Sturgis, 177 A.D.2d 991, 992, 578 N.Y.S.2d 13, lv. denied 79 N.Y.2d 953, 583 N.Y.S.2d 208, 592 N.E.2d 816; People v. Rowell, 163 A.D.2d 833, 558 N.Y.S.2d 367, lv. denied 76 N.Y.2d 896, 561 N.Y.S.2d 558, 562 N.E.2d 883).

Supreme Court properly denied defendant's motion to suppress. The court properly concluded that there was no deliberate fabrication and that the issuing judge could properly infer, from statements made by the police officer in his application for the warrant, that defendant was using that automobile to transport cocaine (see, People v. Hanlon, 36 N.Y.2d 549, 559, 369 N.Y.S.2d 677, 330 N.E.2d 631; People v. Kane, 175 A.D.2d 881, 883, 573 N.Y.S.2d 729). We further agree with the suppression court that the information was not stale. While there is no time limitation on the revelation of information that leads to the issuance of a search warrant (People v. Acevedo, 175 A.D.2d...