People v. Paul

• Decision Date: 10 February 2022
• Docket Number: 110413
• Parties: The PEOPLE of the State of New York, Respondent, v. Kemoo H. PAUL, Appellant.
• Court: New York Supreme Court — Appellate Division

202 A.D.3d 1203

162 N.Y.S.3d 207

The PEOPLE of the State of New York, Respondent,

v.Kemoo H. PAUL, Appellant.

110413

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

Calendar Date: December 15, 2021

Decided and Entered: February 10, 2022

Dennis J. Lamb, Troy, for appellant.

Kristy L. Sprague, District Attorney, Elizabethtown (Kathryn M. Moryl of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Colangelo, J. Appeal from a judgment of the County Court of Essex County (Meyer, J.), rendered January 4, 2018, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree.

In April 2017, defendant was charged by indictment with the crimes of criminal possession of a controlled substance in the third degree, criminal possession of a weapon in the fourth degree and criminal possession of a controlled substance in the third degree, later reduced to criminal possession of a controlled substance in the fourth degree.¹ The charges arose from the execution of a search warrant issued for a residence located in the Town of Ticonderoga, Essex County and the seizure of, among other things, crack cocaine and cash in the bedroom occupied by defendant and Claudia Pina, who was one of several individuals also arrested upon the execution of the warrant. Defendant was not found to have any contraband on his person. At the arraignment, the People filed a CPL 710.30 notice, disclosing statements attributed to defendant that would be introduced at trial. Initially, defendant signed a plea agreement but elected to proceed to trial. The People consented to defendant's motion for a Huntley hearing, and requested, at the commencement of the hearing and without objection, that County Court take judicial notice of the search warrant that it had authorized, which it did. At the conclusion of the Huntley hearing, the court declined to suppress defendant's oral and written statements given at the police station. Prior to the calling of witnesses at the ensuing jury trial, County Court granted defendant's motion in limine to preclude the People from introducing evidence of defendant's prior deliveries of drugs to the residence or prior drug sales.

Following a jury trial, defendant was convicted of criminal possession of a controlled substance in the third and fourth degrees. He was thereafter sentenced to a prison term of eight years, followed by two years of postrelease supervision, on the criminal possession of a controlled substance in the third degree conviction and to a lesser concurrent prison term on the remaining conviction. Defendant appeals.

Defendant contends that the verdict is not supported by legally sufficient evidence and is against the weight of the evidence because the People failed to prove that he knowingly and unlawfully possessed the drugs. Specifically, he contends that two of the People's witnesses, Michelle Hurlburt and Shanna Moran, did not testify to seeing him deliver the drugs to Pina, and there was no forensic evidence connecting him to the containers in which the drugs were found. Initially, at the close of the evidence, defendant moved for a trial order of dismissal based upon the insufficiency of the evidence, citing only that these witnesses did not observe him delivering the drugs to Pina. Thus, defendant's challenge to the legal sufficiency of the evidence is preserved only to that extent (see People v. Walker, 191 A.D.3d 1154, 1155, 142 N.Y.S.3d 648 [2021], lv denied 37 N.Y.3d 961, 147 N.Y.S.3d 518, 170 N.E.3d 392 [2021] ). Nevertheless, defendant's challenge based upon the lack of DNA or fingerprint evidence connecting him to the container in which the drugs were found is subject to a weight of the evidence review (see People v. Abreu, 195 A.D.3d 1152, 1153, 150 N.Y.S.3d 146 [2021], lvs denied 37 N.Y.3d 1144, 159 N.Y.S.3d 348, 180 N.E.3d 512 [2021]).

"When assessing the legal sufficiency of a jury verdict, we view the facts in the light most favorable to the People and examine whether ‘there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt’ " ( People v. Lendof–Gonzalez, 36 N.Y.3d 87, 91–92, 139 N.Y.S.3d 84, 163 N.E.3d 15 [2020], quoting People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] [internal quotation marks omitted]; see People v. Campbell, 196 A.D.3d 834, 835, 149 N.Y.S.3d 720 [2021], lvs denied 37 N.Y.3d 1025, 153 N.Y.S.3d 415, 175 N.E.3d 440, 441 [2021]). By contrast, "[i]n a weight of the evidence analysis, we view the evidence in a neutral light and determine whether a different verdict would have been unreasonable; if a different verdict would not have been unreasonable, we weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence" ( People v. Ferguson, 193 A.D.3d 1253, 1254, 147 N.Y.S.3d 204 [2021], lv denied 37 N.Y.3d 964, 148 N.Y.S.3d 763, 171 N.E.3d 239 [2021] ; see People v. Danielson, 9 N.Y.3d at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ).

As relevant here, Penal Law § 220.16(1) prohibits the knowing possession of a narcotic drug with intent to sell it. Penal Law § 220.09(1) prohibits the knowing possession of "one or more preparations, compounds, mixtures or substances containing a narcotic drug ... of an aggregate weight of one-eighth ounce or more."² Possession includes actual physical possession or constructive possession. "Where, as here, a defendant is not found in physical possession of the controlled substance, constructive possession can be established upon a showing that he or she ‘exercised "dominion and control" over the property by a sufficient level of control over the area in which the contraband is found’ " ( People v. Colon, 177 A.D.3d 1086, 1087, 113 N.Y.S.3d 389 [2019], quoting People v. Manini, 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563 [1992] ; see Penal Law § 10.00[8] )). " ‘Dominion or control is necessarily knowing, and such constructive possession may qualify as knowing possession’ " People v. Shabazz, 177 A.D.3d 1170, 1171, 113 N.Y.S.3d 397 [2019], quoting People v. Muhammad, 16 N.Y.3d 184, 188, 920 N.Y.S.2d 760, 945 N.E.2d 1010 [2011] ). "Constructive possession may be established by circumstantial evidence and any conflict in the evidence regarding a defendant's dominion and control over the drugs in question ... creates issues of witness credibility, and the jury's determination in that regard must be accorded great deference" ( People v. Patterson, 199 A.D.3d 1072, 1074–1075, 157 N.Y.S.3d 179 [2021] [internal quotation marks and citations omitted]; see People v. Shabazz, 177 A.D.3d at 1171, 113 N.Y.S.3d 397 ; People v. Palin, 158 A.D.3d 936, 938, 70 N.Y.S.3d 616 [2018], lv denied 31 N.Y.3d 1016, 78 N.Y.S.3d 286, 102 N.E.3d 1067 [2018] ). "With respect to establishing a defendant's intent to sell drugs, the jury is allowed to infer, based on the amount of drugs at issue, that the defendant possessed them for the purpose of financial gain, rather than personal consumption" ( People v. Patterson, 199 A.D.3d at 1075, 157 N.Y.S.3d 179 [internal quotation marks and citation omitted]).

Moran testified that she owns the residence at issue and met defendant there eight months prior to trial. Moran further testified that, during February and March 2017, defendant came to the residence once or twice a week and stayed in the upstairs right bedroom with Pina, who oversaw the sales of the drugs. Moran identified the car driven by defendant to and from the residence as a green Toyota Camry with Massachusetts license plates. Moran testified that, on March 17, 2017, the day before the search warrant was executed, she saw the scale and baggies in the upstairs right bedroom, and that defendant arrived at the residence with the drugs and brought them upstairs. She knew that defendant brought the drugs because there was no crack cocaine in the residence before he arrived, and there were at least 100 grams in the residence after his arrival. Moran further testified that, on March 17, 2017, she saw the drugs out on the table being broken up by Pina, to be sold in half-gram or gram bags, and saw defendant in the bedroom with Pina as she prepared the drugs for sale. On March 18, 2017, Moran sold drugs. She went into the upstairs right bedroom and Pina gave her $400 worth of crack cocaine to sell. After the sale, Moran brought the money back to Pina and was given the same amount of crack cocaine to sell. She testified that defendant stayed in the upstairs right bedroom with Pina as the sales were made throughout the day. Moran estimated that, on March 18, 2017, approximately 20 buyers came to the residence to buy drugs. She further testified that defendant would bring the drugs to the residence when he would come to the residence once or twice a week during the eight-month period.

Hurlburt, who was also present at the residence when the search warrant was executed, testified that defendant was the "runner" – the one who would bring the drugs to the residence. Defendant came to the residence every three to four days or whenever they ran out of drugs. No one aside from defendant and Pina stayed in or had access to the upstairs right bedroom. Defendant would usually stay at the house for a night or two in the upstairs right bedroom with Pina. Abby Braunius, a State Police investigator in the narcotics enforcement unit, testified that she surveilled the residence during February and March 2017. She was looking for a green Toyota Camry with a Massachusetts registration, later identified as defendant's car, and saw the car at the residence six or seven times during that two-month period. Braunius...