People v. McFadden

• Decision Date: 22 May 2013
• Citation: 106 A.D.3d 1020,965 N.Y.S.2d 582,2013 N.Y. Slip Op. 03690
• Parties: The PEOPLE, etc., respondent, v. Brandon McFADDEN, appellant.
• Court: New York Supreme Court — Appellate Division

106 A.D.3d 1020

965 N.Y.S.2d 582

2013 N.Y. Slip Op. 03690

The PEOPLE, etc., respondent,

v.Brandon McFADDEN, appellant.

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

May 22, 2013.

Lynn W. L. Fahey, New York, N.Y. (Jonathan Garvin of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Danielle S. Fenn of counsel), for respondent.

RANDALL T. ENG, P.J., MARK C. DILLON, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.), rendered October 20, 2009, convicting him of criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence. By decision and order of this Court dated August 2, 2011, the judgment was reversed, and the first count of the indictment, which charged criminal possession of a controlled substance in the third degree, was dismissed ( see People v. McFadden, 87 A.D.3d 554, 927 N.Y.S.2d 792). By order of the Court of Appeals dated December 28, 2011, the People were granted leave to appeal from the decision and order of this Court ( see People v. McFadden, 18 N.Y.3d 860, 938 N.Y.S.2d 868, 962 N.E.2d 293). By opinion and order of the Court of Appeals dated December 13, 2012, the decision and order of this Court was reversed, the first count of the indictment, which charged criminal possession of a controlled substance in the third degree, was reinstated, and the matter was remitted to this Court for consideration of the issues raised but not determined on the appeal to this Court ( see People v. McFadden, 20 N.Y.3d 260, 959 N.Y.S.2d 108, 982 N.E.2d 1241).

ORDERED that, upon remittitur from the Court of Appeals, the judgment is modified, on the facts, by reducing the defendant's conviction of criminal possession of a controlled substance in the third degree to criminal possession of a controlled substance in the seventh degree, and vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for the imposition of a sentence of time served on the conviction of criminal possession of a controlled substance in the seventh degree.

The defendant was charged with criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the seventh degree. At his first trial, the jury deadlocked on the two higher charges, and the defendant agreed to a partial verdict, limited to the count alleging that he committed the offense of criminal possession of a controlled substance in the seventh degree. The Supreme Court accepted a partial verdict of guilty on that count, and declared a mistrial on the two remaining counts, including the greater offense of criminal possession of a controlled substance in the third degree. Thereafter, a second trial was conducted.

After his second trial, the jury found the defendant guilty of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1] [possession with intent to sell] ), but not guilty of criminal sale of a controlled substance in the third degree. Following this verdict, the Supreme Court set aside the conviction of the inclusory concurrent count of criminal possession of a controlled substance in the seventh degree, and thereafter sentenced the defendant to a determinate term of imprisonment of seven years, to be followed by a period of three years of postrelease supervision. The defendant appealed from the judgment, contending that he had been subjected to double jeopardy, and that his conviction of criminal possession of a controlled substance in the third degree was against the weight of the evidence. In a decision and order of this Court dated August 2, 2011, the judgment was reversed on double jeopardy grounds, and the first count of the indictment, which charged criminal possession of a controlled substance in the third degree, was dismissed ( see People v. McFadden, 87 A.D.3d 554, 927 N.Y.S.2d 792). Upon reaching this conclusion, this Court declined to reach the defendant's weight-of-the-evidence argument, since it had been rendered academic.

In an opinion and order dated December 13, 2012 ( see People v. McFadden, 20 N.Y.3d 260, 959 N.Y.S.2d 108, 982 N.E.2d 1241), the Court of Appeals reversed this Court's decision. The Court of Appeals also remitted the matter to this Court for consideration of the issues raised but not determined on the appeal to this Court, to wit, whether the defendant's conviction of criminal possession of a controlled substance in the third degree was against the weight of the evidence.

“Upon defendant's request, the Appellate Division must conduct a weight of the evidence review” and, thus, “a defendant will be given one appellate review of adverse factual findings” ( People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1;seeCPL 470.15[5]; People v. Romero, 7 N.Y.3d 633, 636, 826 N.Y.S.2d 163, 859 N.E.2d 902). There is no preservation requirementfor appellate weight-of-the-evidence review ( see People v. Mann, 63 A.D.3d 1372, 1373, 880 N.Y.S.2d 792). If a finding in favor of the defendant would not have been unreasonable, then “the court must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions” ( People v. Danielson, 9 N.Y.3d at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1). Once the Court conducts such an analysis, it must then decide whether the verdict finding the defendant guilty beyond a reasonable doubt was warranted. “Essentially, the court sits as a thirteenth juror and decides which facts were proven at trial” ( id., citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652;see People v. Noble, 86 N.Y.2d 814, 815, 633 N.Y.S.2d 469, 657 N.E.2d 490). If it appears that the fact finder “ ‘failed to give the evidence the weight it should be accorded, then the appellate court may set aside the verdict’ ” ( People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053,cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828, quoting People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Upon conducting our analysis in this case, in accordance with the above principles, we conclude that the verdict convicting the defendant of criminal possession of a controlled substance (here, cocaine) in the third degree was against the weight of the evidence. To establish a defendant's guilt of this crime, the People must prove that the defendant “knowingly and unlawfully possesses ... a narcotic drug with intent to sell it ” (Penal Law § 220.16 [1] [emphasis added] ).

At trial, the People's witness, a New York City Police Department detective, testified that, on the day of the arrest, July 22, [106 A.D.3d 1023]2008, he and his partner, a New York City Police Department sergeant, were seated in an unmarked police car observing an area near the beach in Far Rockaway, Queens. At around 6:30 p.m., the detective observed two males meet, face each other, and “ instantaneously” exchange something from right hand to right hand. These men were later identified as the defendant and a man named Jamie Lopez. However, on cross-examination, the detective admitted that he did not actually see anything transferred between Lopez and the defendant.

The police sergeant offered a similar account. He testified that he saw two men stop and look at each other, and then saw the defendant, without reaching into his pocket, hand a “white piece of paper to the other individual, in exchange for money.” The sergeant offered conflicting testimony as to how long this transaction lasted, stating at one point in his testimony that it was merely seconds and at another point that it was long as two to three minutes. After making their observations, the police officers arrested Lopez and the defendant.

After the arrest, the officers recovered two bags of marijuana from Lopez, as well as a “white envelope of cocaine [bearing a picture of] a seal with a ball on its nose and the word ‘Seal.’ ” From the defendant's person, the officers recovered “[f]our white envelopes of cocaine, with a seal on it, a ball on the seal's nose and word ‘Seal’ itself, and $20.”

Lopez testified for the defense. He testified, inter alia, that he was a housekeeper at Brookhaven Nursing Home (hereinafter Brookhaven) in Far Rockaway. He stated that knew the defendant because the defendant previously worked at Brookhaven, but that the two men worked different shifts and did not socialize. Lopez stated that, on the day of the arrest, at some time before 2:00 p.m., he had purchased one packet of cocaine in “blue white cellophane paper,” which had the word “Seal” and a picture of a seal on it, outside of a store on 20th Street, from someone other than the defendant. Lopez further stated that he had previously purchased cocaine from this seller, but he did not know his name; that he had previously purchased cocaine at that location; and that he had previously purchased cocaine with the word “Seal” on it. Lopez testified that, following this purchase, he went to the nursing home to start his shift, which began at 2:00 p.m.

According to Lopez, later that day, at 6:00 p.m., he went on his dinner break. At that time, Lopez still had the “Seal” packet of cocaine that he had purchased earlier in the day. He testified that it was a sunny day, and that he walked onto the dunes near the beach, across the street from Brookhaven, where he observed the defendant approximately 25 to 30 feet away from him, fishing on the beach along with two other men. As Lopez recalled it, Lopez waved to the defendant, and remained either on the dunes or a nearby dock for about two minutes before heading back to the nursing home. Lopez further testified that,...