People v. Sostre

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Rumsey, J.
• Citation: People v. Sostre, 172 A.D.3d 1623, 100 N.Y.S.3d 768 (N.Y. App. Div. 2019)
• Decision Date: 16 May 2019
• Docket Number: 109380
• Parties: The PEOPLE of the State of New York, Respondent, v. Dayvon SOSTRE, Appellant.

172 A.D.3d 1623

100 N.Y.S.3d 768

The PEOPLE of the State of New York, Respondent,

v.Dayvon SOSTRE, Appellant.

109380

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

Calendar Date: March 21, 2019

Decided and Entered: May 16, 2019

Danielle Neroni Reilly, Albany, for appellant.

P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.

Before: Garry, P.J., Clark, Mulvey, Devine and Rumsey, JJ.

MEMORANDUM AND ORDER

Rumsey, J.Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered April 12, 2017, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the second degree and criminal possession of a controlled substance in the seventh degree.

In June 2016, defendant was a passenger in a car that was stopped by State Trooper Eric VanBramer for violations of the Vehicle and Traffic Law. Upon approaching the vehicle, VanBramer detected the odor of marihuana and asked both the driver and defendant for identification. When defendant was unable to provide identification, VanBramer ordered defendant to exit the vehicle. When State Trooper David Notarino arrived on the scene, he and VanBramer conducted a search of the vehicle, finding a red duffel bag on the rear passenger seat and, within that duffel bag, a smaller red toiletry bag that contained marihuana. The search was continued with a canine, who alerted when it neared the duffel bag. Upon a further search of the duffel bag, the troopers found an unloaded semiautomatic handgun, ammunition, cocaine and defendant's workplace photo identification and pay stub. Defendant was thereafter charged by indictment with criminal possession of a weapon in the second degree and criminal possession of a controlled substance in the fifth degree. After a hearing, County Court denied defendant's motion to suppress the evidence that was seized during the search of the vehicle. Prior to trial, the charge of criminal possession of a controlled substance in the fifth degree was reduced to criminal possession of a controlled substance in the seventh degree. After a jury trial, defendant was found guilty of both charges and was thereafter sentenced, as a second violent felony offender, to a prison term of 10 years, to be followed by five years of postrelease supervision, for his conviction of criminal possession of a weapon in the second degree, and to a concurrent term of incarceration of one year for his conviction of criminal possession of a controlled substance in the seventh degree. Defendant appeals.

Defendant argues that County Court erred in denying his motion to suppress the evidence that was seized upon the search of the vehicle. Defendant does not dispute that VanBramer had the authority to stop the vehicle based upon violations of the Vehicle and Traffic Law; however, he contends that the length and circumstances of the continued detention were not justified. "As for the ensuing search of the vehicle, it is settled that the odor of marihuana emanating from a vehicle, when detected by an officer qualified by training and experience to recognize it, is sufficient to constitute probable cause to search a vehicle and its occupants" ( People v. Dolan, 165 A.D.3d 1499, 1500, 86 N.Y.S.3d 306 [2018] [internal quotation marks and citations omitted] ). At the suppression hearing, VanBramer testified that, upon approaching the passenger side of the vehicle, he "smelled an odor of marihuana emitting from the vehicle," and that he conducted the search only after neither the driver nor defendant – who claimed to be cousins – could provide the other person's last name. Deferring to County Court's determination that VanBramer was a credible witness, we conclude that County Court properly denied defendant's suppression motion (see People v. Acevedo, 118 A.D.3d 1103, 1106, 987 N.Y.S.2d 660 [2014], lv denied, 26 N.Y.3d 925, 17 N.Y.S.3d 88, 38 N.E.3d 834 [2015] ).

We similarly find no error in County Court's admission of a redacted audio recording of a phone call placed from the jail where defendant was held prior to trial. Defendant's contention that the People failed to establish a proper foundation by failing to establish that defendant was the speaker is unavailing. In that regard, "a speaker's identity may be proven through circumstances surrounding the recorded conversation, which must include sufficient indicia of reliability, such as the substance of the conversation confirming the identity of the party" ( People v. Lancaster, 121 A.D.3d 1301, 1304, 995 N.Y.S.2d 283 [2014] [internal quotation marks and citation omitted], lv denied 24 N.Y.3d 1121, 3 N.Y.S.3d 762, 27 N.E.3d 476 [2015] ). In that regard, use of personal identification numbers (hereinafter PINs) that are required to place a phone call are sufficient indicia of reliability (see People v. Racks, 125 A.D.3d 692, 694, 2 N.Y.S.3d 598 [2015], lv denied 25 N.Y.3d 992, 10 N.Y.S.3d 534, 32 N.E.3d 971 [2015] ). Marcus Decker, a sergeant in the Albany Crime Analysis Center, testified that, to place a phone call from the jail where defendant was held following his arrest, an inmate must enter two PINs that are assigned to him or her by the jail and, further, that the PINs assigned to defendant were used to place the relevant phone call. Moreover, the phone call was purportedly placed to defendant's mother, and the caller refers to the woman with whom he is speaking as his mother.¹

Defendant further argues that the verdict was not supported by legally sufficient evidence and was against the weight of the evidence. "When considering a challenge to the legal sufficiency of the evidence, we view the evidence in the light most favorable to the People and evaluate whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged. Moreover, in assessing the weight of the evidence, where, as here, a different verdict would not have been unreasonable, this Court must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony. In conducting a weight of the evidence analysis, we must give deference to the jury's credibility assessments" ( People v. Anatriello, 161 A.D.3d 1383, 1384–1385, 77 N.Y.S.3d 581 [2018] [internal quotation marks and citations omitted], lv denied 31 N.Y.3d 1144, 83 N.Y.S.3d 426, 108 N.E.3d 500 [2018] ).

Defendant specifically contends that the evidence was legally insufficient to convict him of either charge because it did not establish his possession of the weapon, ammunition and drugs that were found in the duffel bag. As an occupant of the vehicle in which the weapon, ammunition and cocaine were found, defendant was presumed to be in possession of those items (see Penal Law §§ 220.25[1] ; 265.15[3] ). The evidence, viewed in the light most favorable to the People, fails to rebut the presumption. Indeed, VanBramer's testimony that he found defendant's workplace identification and pay stub in the front pocket of the duffel bag tends to establish that the duffel bag and its contents belonged to, or were in possession of, defendant. VanBramer's testimony also rebuts defendant's claim that his workplace identification and pay stub were planted in the duffel bag by the driver. VanBramer testified that, although he conducted an interview of defendant while both were standing near the rear of the vehicle, he maintained an unobstructed view of the driver, who remained in the vehicle and faced forward the entire time without making any movement toward the rear seat, where the duffel bag was located. Thus, the evidence was legally sufficient to support the convictions.

Turning to the weight of the evidence analysis, a different verdict would not have been unreasonable in light of defendant's testimony. Although it is undisputed that a weapon, ammunition, cocaine and defendant's workplace identification and pay stub were recovered from...