People v. Tuff

• Decision Date: 22 December 2017
• Docket Number: KA 09–01810,1253
• Parties: The PEOPLE of the State of New York, Respondent, v. Leroy TUFF, Jr., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

156 A.D.3d 1372
68 N.Y.S.3d 273

The PEOPLE of the State of New York, Respondent,
v.
Leroy TUFF, Jr., Defendant–Appellant.

1253
KA 09–01810

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

Entered: December 22, 2017

D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.

PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, TROUTMAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

Memorandum:

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Defendant was convicted upon a jury verdict of various charges, including criminal sale of a controlled substance in the third degree ( Penal Law § 220.39[1] ), criminal possession of a controlled substance in the first degree (§ 220.21[1] ) and two counts of criminal possession of a controlled substance in the third degree (§ 220.16[1] ). On a prior appeal, this Court affirmed the judgment of conviction ( People v. Tuff, 90 A.D.3d 1645, 935 N.Y.S.2d 807 [4th Dept. 2011], lv denied 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218 [2012] ). We subsequently granted defendant's motion for a writ of error coram nobis, however, on the ground that appellate counsel had failed to raise an issue on appeal that may have merit, i.e., whether the verdict is against the weight of the evidence ( People v. Tuff, 107 A.D.3d 1646, 967 N.Y.S.2d 847 [4th Dept. 2013] ), and we vacated our prior order. We now consider the appeal de novo.

Defendant contends that the conviction is not supported by legally sufficient evidence. As defendant correctly concedes, he failed to preserve his contention for our review (see generally People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). We nevertheless exercise our power to review the contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ), and we conclude that the contention lacks merit.

Before trial, County Court consolidated two indictments that contained charges related to three separate and distinct incidents. One indictment charged defendant with one count each of criminal sale of a controlled substance in the third degree ( Penal Law § 220.39[1] ), and criminal possession of a controlled substance in the third degree (§ 220.16[1] ) related to an alleged sale of a controlled substance to a confidential informant on September 9, 2008 (sale offenses). The other indictment charged defendant with criminal possession of a controlled substance in the first degree (§ 220.21[1] ), criminal possession of a controlled substance in the third degree (§ 220.16 [1] ), unlawful possession of marihuana (§ 221.05) and two counts of criminally using drug paraphernalia in the second degree (§ 220.50[2], [3] ) related to his alleged possession of those items, which were recovered during the execution of a search warrant at the residence of defendant's sister on September 25, 2008 (possession offenses). That indictment also charged defendant with intimidating a victim or witness in the third degree (§ 215.15 [1] ) based on allegations that, on October 26, 2008, he threatened his sister's boyfriend with physical injury should he

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cooperate with the police or give testimony against defendant.

Contrary to the contention of defendant, the conviction of the sale offenses is supported by legally sufficient evidence, i.e., the eyewitness testimony of the informant who participated in the controlled purchase of cocaine from defendant and the New York State Police investigator who supervised that controlled purchase, along with the forensic testimony establishing the weight and identity of the cocaine (see People v. Brown, 2 A.D.3d 1423, 1424, 770 N.Y.S.2d 243 [4th Dept. 2003], lv denied 1 N.Y.3d 625, 777 N.Y.S.2d 24, 808 N.E.2d 1283 [2004] ; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). We reject defendant's contention that the testimony of the informant was incredible as a matter of law, i.e., "manifestly untrue, physically impossible, contrary to experience, or self-contradictory" ( People v. Ponzo, 111 A.D.3d 1347, 1348, 975 N.Y.S.2d 274 [4th Dept. 2013] [internal quotation marks omitted]; see People v. Barr, 216 A.D.2d 890, 890, 628 N.Y.S.2d 901 [4th Dept. 1995], lv denied 86 N.Y.2d 790, 632 N.Y.S.2d 503, 656 N.E.2d 602 [1995] ). Viewing the evidence in light of the elements of the sale offenses as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's additional contention that the verdict with respect to those counts is against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).

Addressing next the single count of intimidating a victim or witness, we conclude that the testimony of the sister's boyfriend that defendant came to his home and threatened him with physical injury should he cooperate with law enforcement or testify against defendant at trial is legally sufficient to establish defendant's guilt of that offense (see Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). In addition, viewing the evidence in light of the elements of that crime as charged to the jury (see Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict on that count is not against the weight of the evidence (see Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). "[R]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury" ( People v. Witherspoon, 66 A.D.3d 1456, 1457, 885 N.Y.S.2d 829 [4th Dept. 2009], lv denied 13 N.Y.3d 942, 895 N.Y.S.2d 333, 922 N.E.2d 922 [2010] [internal quotation marks omitted] ).

The closer issues are whether the evidence is legally sufficient to support the conviction of the possession offenses or whether the verdict on those counts is against the weight of the evidence, the latter issue being the basis upon which we granted an appeal de novo. Having reviewed the record de novo, we conclude that those issues lack merit.

" ‘Constructive possession can be established by evidence that the defendant had dominion and control over the [drugs and drug paraphernalia] or the area in which [they were] found’ ... ‘Exclusive access, however, is not required to sustain a finding of constructive possession’ " ( People v. Victor, 139 A.D.3d 1102, 1105, 31 N.Y.S.3d 257 [3d Dept. 2016], lv denied 28 N.Y.3d 1076, 47 N.Y.S.3d 234, 69 N.E.3d 1030 [2016] ; see People v. Carvajal, 14 A.D.3d 165, 170, 786 N.Y.S.2d 450 [1st Dept. 2004], affd 6 N.Y.3d 305, 812 N.Y.S.2d 395, 845 N.E.2d 1225 [2005] ). Here, the drugs and drug paraphernalia were recovered from various locations inside a residence in which defendant's sister,

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her boyfriend and her children resided. It is undisputed that defendant did not reside in that residence. Nevertheless, there was ample evidence that defendant constructively possessed the contraband.

Throughout the summer of 2008, both before and after the sale, defendant was under surveillance, and he was observed entering the sister's residence numerous times. On September 9, 2008, defendant sold cocaine to an informant at the sister's residence, and his presence at the residence during the sale was confirmed by the investigator. There was significant evidence supporting the inference that defendant was a major drug dealer, which included evidence that $17,000 in cash was recovered from defendant's residence, bound in $1,000 increments, also known as "G packets." The informant, who was also an admitted drug dealer, testified that dealers often used "stash" houses belonging to friends or relatives to keep their drugs out of their own residences.

During the execution of the search warrant at the sister's residence, her boyfriend stated that they were "going down for [defendant's] [actions]." Indeed, the boyfriend testified at trial that the cocaine in the attic of his residence belonged to defendant. Defendant had come to the residence 30 minutes before the raid and had gone to the back of the house where the door to the attic was located. Some time later, defendant called the boyfriend and asked him to move the cocaine to the garage outside of the residence.

Although there was a question whether defendant had a key to the residence at the time the search warrant was executed, the sister's boyfriend and the informant, who spent a lot of time with defendant, testified that defendant had access to the residence. He could go there "any time he wanted" and "could go in and out as he please[d]."

After the search warrant was executed, defendant admitted to two of his relatives that the cocaine found in the residence belonged to him. He also admitted to the informant, before he knew that the informant was cooperating with law enforcement, that the cocaine at the sister's residence had belonged to him and that the boyfriend was "stupid" for failing to move it.

Unlike other constructive possession cases, where the testimony at trial is limited to physical evidence linking a defendant to a location and possession of the drugs must be inferred from the defendant's ties to the residence (see e.g. ...