People v. Vargas
Decision Date | 01 April 2010 |
Parties | The PEOPLE of the State of New York, Respondent, v. Dimas VARGAS, Appellant. |
Court | New York Supreme Court — Appellate Division |
72 A.D.3d 1114
The PEOPLE of the State of New York, Respondent,
v.
Dimas VARGAS, Appellant.
Supreme Court, Appellate Division, Third Department, New York.
April 1, 2010.
Neal D. Futerfas, White Plains, for appellant, and appellant pro se.
Andrew M. Cuomo, Attorney General, New York City (Hannah Stith Long of counsel), for respondent.
Before: CARDONA, P.J., PETERS, SPAIN, STEIN and GARRY, JJ.
PETERS, J.
Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered June 30, 2006, convicting defendant following a nonjury trial of the crimes of
During the course of a coordinated undercover investigation, the Community Narcotics Enforcement Team (hereinafter CNET) of the State Police received information from a confidential informant that defendant and his cohorts were supplying and distributing cocaine in the City of Binghamton, Broome County. Following eight controlled buys by the confidential informant, CNET investigators obtained eavesdropping warrants on two telephones, including a cellular telephone used by
Based primarily upon the telephone conversations recorded during the eavesdropping surveillance period, defendant was indicted, along with five other individuals, and charged with conspiracy and various drug-related offenses. Following a hearing, defendant's motions to suppress all evidence obtained through the telephone eavesdropping and search warrants were denied by County Court. At the ensuing nonjury trial, the People's theory was that defendant was the leader of a cocaine selling operation wherein he would procure quantities of cocaine from New York City, transport the cocaine to Broome County for distribution, receive orders from potential buyers via cellular telephone and then call one of his codefendants to prepare, package and/or deliver the cocaine to said buyers at various locations along the streets of Binghamton. Defendant was ultimately convicted of 11 counts of criminal sale of a controlled substance in the third degree, 13 counts of criminal possession of a controlled substance in the third degree, three counts of criminal possession of a controlled substance in the fourth degree, and conspiracy in the fourth degree. He was sentenced, as a second felony offender, to an aggregate prison term of 14 years to be followed by three years of postrelease supervision.1
We reject defendant's assertion that the search warrant was not supported by probable cause because the reliability of the confidential informant had not been established. There is "no one acid test of reliability," and a confidential informant may be considered reliable if he or she "has come forward with accurate information in the past[,] ... makes a statement under oath or where details of his [or her] story have been confirmed by police observation" ( People v. Rodriguez, 52 N.Y.2d 483, 489, 438 N.Y.S.2d 754, 420 N.E.2d 946 [1981] [internal citations omitted]; see People v. Alston, 1 A.D.3d 627, 628, 766 N.Y.S.2d 724 [2003], lv. denied 1 N.Y.3d 594, 776 N.Y.S.2d 226, 808 N.E.2d 362 [2004] ). Here, the sworn allegations in the police affidavits supporting the application, which detailed eight controlled buys of cocaine made by the confidential informant from defendant under police supervision
We agree with the People's assertion that defendant's challenge to the legal sufficiency of the evidence is unpreserved inasmuch as he presented evidence after his unsuccessful motion to dismiss and failed to renew the motion at the close of all proof ( see People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006]; People v. Hines, 97 N.Y.2d 56, 62-63, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001] ).2 Nevertheless, since defendant also attacks the verdict as against the weight of the evidence, we will consider the evidence adduced as to each of the elements of the challenged crimes in the context of that review ( see People v. Loomis, 56 A.D.3d 1046, 1046-1047, 867 N.Y.S.2d 772 [2008] ).
First, with respect to certain of his convictions for criminal possession of a controlled substance, defendant argues that the People failed to prove that he had a possessory interest or control over the cocaine stored at codefendant Yolanda Matthews' home and the cocaine left with codefendant Ricardo Dash. 3 For each of the counts at issue, the People proceeded on the theory of constructive possession ( see Penal Law § 10.00[8] ), which required a showing that defendant "exercised dominion and control over the place where contraband was seized or over the person who actually possessed the property" ( People v. Manini, 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563 [1992]; see People v. Echavarria, 53 A.D.3d 859, 861, 861 N.Y.S.2d 510 [2008], lv. denied 11 N.Y.3d 832, 868 N.Y.S.2d 606, 897 N.E.2d 1090 [2008]; People v. Garcia, 30 A.D.3d 833, 835, 817 N.Y.S.2d 723 [2006] ).
As to the counts involving Matthews, she testified that defendant
We similarly reject defendant's challenge to the evidence supporting his convictions for criminal sale of a controlled substance in the third degree and conspiracy in the fourth degree. The recorded telephone conversations between defendant and his codefendant customers Ronald Woodruff and Marsha Hoover, as well as the trial testimony of Matthews, Dash and CNET investigators, established that, with respect to each of the sale counts, defendant made "a bona fide offer to sell" indicating both the intent and the ability to proceed with the sale ( People v. Mike, 92 N.Y.2d 996, 998, 684 N.Y.S.2d 165, 706 N.E.2d 1189 [1998]; see Penal Law § 220.00[1]; People v. Samuels, 99 N.Y.2d 20, 24, 750 N.Y.S.2d 828, 780 N.E.2d 513 [2002]; People v. Polanco, 50 A.D.3d 587, 588, 856 N.Y.S.2d 601 [2008], lv. denied
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