People v. Vanderpool

• Decision Date: 06 July 1995
• Citation: 629 N.Y.S.2d 307,217 A.D.2d 716
• Parties: The PEOPLE of the State of New York, Respondent, v. Teresa A. VANDERPOOL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 307

629 N.Y.S.2d 307

217 A.D.2d 716

The PEOPLE of the State of New York, Respondent, v.Teresa A. VANDERPOOL, Appellant.

Supreme Court, Appellate Division Third Department.

July 6, 1995.

Edward M. Robinson, Binghamton, for appellant.

Robert J. Simpson, Dist. Atty. (Gerald A. Keene, of counsel), Oswego, for respondent.

Before MIKOLL, J.P., and CREW, WHITE, YESAWICH and PETERS, JJ.

MIKOLL, Justice Presiding.

Appeal from a judgment of the County Court of Tioga County(Sgueglia, J.), rendered September 10, 1993, upon a verdict convicting defendant of the crime of criminal possession of a controlled substance in the third degree.

Defendant was indicted on one count of criminal possession of a controlled substance in the third degree.The charges stem from the seizure of 12.74 grams of cocaine found in the bottom of an oil can located in the vehicle defendant was driving, owned by her boyfriend and codefendant, Ronald Vincent(see, People v. Vincent, 212 A.D.2d 828, 622 N.Y.S.2d 616, lv. denied85 N.Y.2d 915, 627 N.Y.S.2d 338, 650 N.E.2d 1341).The drugs were seized pursuant to a search warrant issued upon application of Frank Roney, a State Police Investigator.A suppression hearing revealed that police informants told Roney that Vincent was dealing drugs from his apartment in the Village of Waverly, Tioga County and that defendant was actively involved in the operation.Equipped with a recording device, police informant Melvin Bostwick went to Vincent's home to give him $200 to purchase cocaine.Defendant and Vincent discussed with Bostwick an impending trip to New York City to purchase the cocaine.Based on the information supplied by the police informants, which was verified by tape-recorded conversations, Roney applied for and was issued a search warrant to search, inter alia, Vincent, his residence and auto.The search warrant also permitted the search of any persons present at Vincent's home or vehicle during the execution of the warrant.The search warrant was executed on December 16, 1992 after police surveillance disclosed Vincent and defendant leaving Vincent's home at 5:30 A.M. with defendant driving Vincent's vehicle outside Waverly, and their return to Waverly at 2:00 P.M. later that day.The search of the vehicle netted the drugs.

County Court denied defendant's motion to suppress the drugs found in the car.Following a jury trial, defendant was found guilty and was sentenced as a second felony offender to a prison term of 4 1/2 to 9 years.On this appeal, defendant contends that the indictment is jurisdictionally defective, that County Court erred in denying defendant's motion to suppress the physical evidence, and in denying her motion to set aside the indictment and have a special prosecutor appointed.

Addressing defendant's assertions ad seriatim, we note that defendant's claims as to jurisdictional infirmity are really directed to the underlying factual allegations.She urges that the indictment is faulty in that it alleges that defendant committed the crime while being aided and abetted by Vincent and it further alleges that defendant was acting in concert with Vincent.Defendant contends that these allegations are inconsistent.She further contends that because one paragraph of the indictment does not allege accomplice liability, it is thus insufficient.Though a bill of particulars was granted to defendant to amplify the charge, defendant never moved to dismiss the indictment as containing contradictions and/or for failure to set out all required elements of the crime charged.Her factual arguments, in this regard, raised for the first time on appeal, are unpreserved for appellate review and we decline to address them (see, CPL 470.05[2];see also, People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656).

To the extent that defendant is claiming a jurisdictional defect, we disagree.Defendant was fairly apprised of the charge against her.The indictment satisfies legal sufficiency and fair notice requirements (see, People v. Ray, 71 N.Y.2d 849, 850, 527 N.Y.S.2d 740, 522 N.E.2d 1037).Defendant was informed that she was charged with a specified Penal Law violation....