People v. Roulhac

• Decision Date: 01 November 2018
• Docket Number: 108666
• Citation: 86 N.Y.S.3d 336,166 A.D.3d 1066
• Parties: The PEOPLE of the State of New York, Respondent, v. Vincent ROULHAC, Appellant.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 1066
86 N.Y.S.3d 336

The PEOPLE of the State of New York, Respondent,
v.
Vincent ROULHAC, Appellant.

108666

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

Calendar Date: September 10, 2018
Decided and Entered: November 1, 2018

86 N.Y.S.3d 337

Robert Gregor, Lake George, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Jeffrey Kehm of counsel), for respondent.

Before: McCarthy, J.P., Lynch, Devine, Mulvey and Pritzker, JJ.

MEMORANDUM AND ORDER

McCarthy, J.P.

Appeal from a judgment of the County Court of Clinton County (Ryan, J.), rendered June 9, 2016, upon a verdict convicting defendant of the crime of criminal possession of a controlled substance in the third degree (two counts).

Defendant was a passenger in a vehicle that a state trooper stopped for a traffic violation in Essex County. After the driver consented to a search of the car, defendant advised the trooper that there was marihuana in the glove box and it belonged to him. The trooper recovered that marihuana after his K–9 dog alerted on the glove box. The dog then alerted on the passenger seat. When a search of that seat, defendant and his clothing did not reveal any drugs, the trooper and an investigator suspected that defendant had concealed drugs inside his body. They transported defendant to their police barracks in Clinton County, obtained a search warrant to X-ray his body and transported him to a hospital in Clinton County to execute that warrant. At the hospital, defendant informed the investigator that he had drugs concealed inside his anus and voluntarily removed from that orifice a condom containing bags of heroin and cocaine.

86 N.Y.S.3d 338

A Clinton County indictment charged defendant with two counts of criminal possession of a controlled substance in the third degree (one count pertaining to the heroin and one to the cocaine). Following a hearing on defendant's pretrial motion to, among other things, dismiss the indictment and suppress evidence, County Court denied the motion in its entirety. A jury convicted defendant as charged. The court sentenced him to concurrent prison terms of nine years, followed by three years of postrelease supervision. Defendant appeals.

The police had probable cause for defendant's arrest. At the hearing, both the trooper and defendant testified that defendant admitted possessing marihuana, which the trooper then recovered. Defendant's unlawful possession of marihuana was committed in the trooper's presence, giving probable cause for defendant's arrest (see People v. Carter, 60 A.D.3d 1103, 1105, 875 N.Y.S.2d 303 [2009], lv denied 12 N.Y.3d 924, 884 N.Y.S.2d 705, 912 N.E.2d 1086 [2009] ; People v. Nesbitt, 56 A.D.3d 816, 818, 867 N.Y.S.2d 736 [2008], lv denied 11 N.Y.3d 928, 874 N.Y.S.2d 13, 902 N.E.2d 447 [2009] ). It is irrelevant that the police and the People did not formally charge him with possessing marihuana after discovering that he possessed narcotics. Furthermore, the K–9's alert and indication on the passenger seat, followed by a fruitless search of the seat and defendant's clothing, presented probable cause to suspect that defendant possessed drugs in his body.

Defendant's challenge to the legal sufficiency of the evidence at trial is unpreserved for our review because his trial motion for a directed verdict did not include the arguments that he now raises (see People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008] ; People v. Taylor, 163 A.D.3d 1275, 1275–1276, 81 N.Y.S.3d 657 [2018] ; People v. Briggs, 129 A.D.3d 1201, 1202, 13 N.Y.S.3d 255 [2015], lv denied 26 N.Y.3d 1038, 22 N.Y.S.3d 167, 43 N.E.3d 377 [2015] ). As the sufficiency of the trial evidence has not been properly challenged and it is, therefore, presumed legally sufficient, defendant is precluded from challenging the legal sufficiency of the evidence that was presented to the grand jury (see CPL 210.30[6] ; People v. Dowling, 75 A.D.3d 838, 840, 906 N.Y.S.2d 148 [2010], lv denied 15 N.Y.3d 952, 917 N.Y.S.2d 112, 942 N.E.2d 323 [2010] ; People v. Folkes, 43 A.D.3d 956, 956, 841 N.Y.S.2d 365 [2007], lvs denied 9 N.Y.3d 1004, 1006, 850 N.Y.S.2d 392, 394, 880 N.E.2d 878, 880 [2007] ).

The verdict is not against the weight of the evidence. "A person is guilty of criminal possession of a controlled substance in the third degree when he [or she] knowingly and unlawfully possesses ... a narcotic drug with intent to sell it" ( Penal Law § 220.16[1] ). Defendant's own testimony that he placed 11 grams of heroin and 19 grams of cocaine in a condom, which he then secreted in his anus, established a voluntary act of possession of narcotics (see Penal Law §§ 15.00[2] ; 15.10; People v. Perry, 67 A.D.3d 1046, 1048, 888 N.Y.S.2d 284 [2009], lv denied 14 N.Y.3d 804, 899 N.Y.S.2d 138, 925 N.E.2d 942 [2010] ). Defendant testified that he was not employed, he did not pay for the drugs but received them for free from his friends, and he possessed the drugs for his own personal use. However, the People presented proof regarding a scheme to regularly use a transporter car preceded by a scout car, with each vehicle having at least some connection to...