People v. Victor

• Decision Date: 05 May 2016
• Docket Number: 104917.
• Citation: 31 N.Y.S.3d 257,139 A.D.3d 1102,2016 N.Y. Slip Op. 03551
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael A. VICTOR Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 1102

31 N.Y.S.3d 257

2016 N.Y. Slip Op. 03551

The PEOPLE of the State of New York, Respondent,

v.Michael A. VICTOR Jr., Appellant.

104917.

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

May 5, 2016.

Ostrer & Associates, PC, Chester (Benjamin Ostrer of counsel), for appellant.

Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), for respondent.

Before: PETERS, P.J., GARRY, EGAN JR., ROSE and CLARK, JJ.

CLARK, J.

Appeal from a judgment of the County Court of Chenango County (Sullivan, J.), rendered December 16, 2011, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the second degree, criminal possession of a controlled substance in the third degree (two counts), conspiracy in the second degree, criminal possession of a weapon in the second degree (three counts) and criminal possession of a weapon in the third degree (three counts).

In January 2009, the Town of Norwich Police Department commenced an investigation into the sale of narcotics and centered its investigation around Tonya Jenkins and her daughter, Currisa Jenkins (hereinafter Jenkins), defendant's paramour. During the investigation, several controlled buys of cocaine and heroin were made from Cassie Brooks, Tonya Jenkins and Jenkins. In March 2009, police obtained a search warrant for the residence of Jenkins (hereinafter the residence), which, upon execution, resulted in the arrest of Jenkins and defendant. Police searched the residence and seized marihuana, cocaine, several thousand dollars, multiple cell phones, a shotgun, ammunition, two cars, keys to a storage unit and keys to a vehicle not found at the residence. As a result, defendant was charged by indictment with one count of criminal possession of a controlled substance in the third degree.

In April 2009, based upon the storage unit and car keys seized during the search of the residence and upon recorded phone calls made by Jenkins while she was in jail, police obtained and executed a search warrant for a storage unit in the Town of Norwich, Chenango County that was rented by Jenkins and seized a Mercedes automobile, as well as a backpack containing narcotics, drug paraphernalia, weapons and ammunition. Defendant was subsequently charged in a second indictment with criminal possession of a controlled substance in the second degree, criminal possession of a controlled substance in the third degree, conspiracy in the second degree, criminal possession of a weapon in the second degree (three counts) and criminal possession of a weapon in the third degree (three counts). The indictments were thereafter consolidated. In 2010, Jenkins pleaded guilty to criminal possession of a controlled substance in the fifth degree and was released from jail on the condition that she testify against defendant. Following a jury trial, at which Jenkins testified, defendant was convicted as charged and sentenced to an aggregate prison term of 34 to 39 years. Defendant now appeals.

Defendant argues that his cell phone was illegally seized at the residence because the search warrant did not specifically refer to cell phones as an item to be seized. We disagree. The search warrant for the residence authorized, among other things, the seizure of “any records ... pertaining to any illicit controlled substance activities or transactions” and “[a]ny computers, central processing units, external and internal drives and external and internal storage equipment or media, terminals or video display units ... and any and all computing or data processing software, or data including, but not limited to: hard disks, floppy disks, cassette tapes, video cassette tapes, magnetic tapes, integral ram or rom units, and any other permanent or portable storage devices(s).” This language was sufficiently particular to allow the police to identify a cell phone as an item to be seized pursuant to the warrant, inasmuch as a cell phone qualifies as a computer and/or storage device capable of maintaining records “pertaining to ... illicit controlled substance activities or transactions” (People v. Church, 31 A.D.3d 892, 893–894, 819 N.Y.S.2d 155 [2006], lv. denied 7 N.Y.3d 866, 824 N.Y.S.2d 611, 857 N.E.2d 1142 [2006] ; see generally People v. Nieves, 36 N.Y.2d 396, 401, 369 N.Y.S.2d 50, 330 N.E.2d 26 [1975] ).

Defendant also contends that the police did not listen to or obtain Jenkins' recorded jail telephone conversations, which formed the basis for the search warrant for the storage unit, until after the warrant was executed and that County Court improperly denied him a Alfinito/Franks hearing to challenge the veracity of the affidavits submitted in support of the application for that search warrant. The factual information contained in Officer Michael Purdy's supporting deposition, which was attached to the search warrant application, was based in part upon a recorded jail telephone conversation between Jenkins and another individual and set forth sufficient information to support a reasonable belief that evidence of criminality would be found in the storage unit (see People v. Pinkney, 90 A.D.3d 1313, 1315–1316, 935 N.Y.S.2d 374 [2011] ; People v. Church, 31 A.D.3d at 894, 819 N.Y.S.2d 155 ). Defendant relies on Purdy's testimony at a pretrial suppression hearing to establish that he was entitled to an Alfinito/Franks hearing. Although Purdy acknowledged at that hearing that at least one of Jenkins' recorded conversations was obtained and listened to after the warrant was executed, Purdy testified that the conversation referenced in his supporting deposition was listened to prior to issuance of the warrant. As defendant failed to satisfy his burden of proving that either the search warrant application for the storage unit or Purdy's supporting deposition contained false statements that were made knowingly, intentionally or recklessly to establish probable cause, County Court properly denied his request for an Alfinito/Franks hearing (see People v. Estrella, 48 A.D.3d 1283, 1285–1286, 851 N.Y.S.2d 793 [2008], affd. 10 N.Y.3d 945, 862 N.Y.S.2d 857, 893 N.E.2d 134 [2008], cert. denied 555 U.S. 1032, 129 S.Ct. 608, 172 L.Ed.2d 457 [2008] ; People v. Folk, 44 A.D.3d 1095, 1097, 843 N.Y.S.2d 695 [2007], lv. denied 9 N.Y.3d 1006, 850 N.Y.S.2d 394, 880 N.E.2d 880 [2007] ; People v. Richardson, 28 A.D.3d 1002, 1005, 813 N.Y.S.2d 581 [2006], lv. denied 7 N.Y.3d 817, 822 N.Y.S.2d 492, 855 N.E.2d 808 [2006] ; People v. Griffin, 234 A.D.2d 718, 720, 651 N.Y.S.2d 645 [1996], lv. denied 89 N.Y.2d 1036, 659 N.Y.S.2d 866, 681 N.E.2d 1313 [1997] ).

Additionally, with the exception of defendant's conviction on count 10 of the consolidated indictment, criminal possession of a defaced weapon (see Penal Law § 265.02[3] ), we are unpersuaded by defendant's contention that the verdict is against the weight of the evidence. In conducting a weight of the evidence review, this Court must first determine whether a different conclusion would have been unreasonable and, if such conclusion would not have been unreasonable, we then “weigh[ ] the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony while viewing the evidence in a neutral light and giving deference to the jury's credibility assessments” (People v. Gibson, 121 A.D.3d 1416, 1418, 995 N.Y.S.2d 383 [2014] [internal quotation marks omitted], lv. denied 24 N.Y.3d 1119, 3 N.Y.S.3d 761, 27 N.E.3d 475 [2015] ; see People v. Romero, 7 N.Y.3d 633, 643, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ).

Defendant specifically raises the issue of constructive possession as to the drugs found in the shared residence and the items found in the storage unit, including 299 grams of cocaine, digital scales with white powder residue, a 9 millimeter Luger pistol, TEC–9 model, a Colt Trooper .357 Magnum revolver and a Jennings .22lr pistol. “Constructive possession can be established by evidence that the defendant had dominion and control over the weapon [or drugs] or the area in which it was found” (People v. Bellamy, 118 A.D.3d 1113, 1114, 987 N.Y.S.2d 666 [2014], lv. denied 25 N.Y.3d 1159, 15 N.Y.S.3d 292, 36 N.E.3d 95 [2014] [citation omitted]; see People v. Dawson, 110 A.D.3d 1350, 1352, 973 N.Y.S.2d 850 [2013], lv. denied 23 N.Y.3d 1035, 993 N.Y.S.2d 249, 17 N.E.3d 504 [2014] ). “Exclusive access, however, is not required to sustain a finding of constructive possession” (People v. Bellamy, 118 A.D.3d at 1114, 987 N.Y.S.2d 666 [citation omitted]; see Penal Law § 10.00[8] ; People v. Stewart, 95 A.D.3d 1363, 1364, 943 N.Y.S.2d 302 [2012], lv. denied 19 N.Y.3d 1001, 951 N.Y.S.2d 477, 975 N.E.2d 923 [2012] ). “Constructive possession of the drugs [or weapons] at issue may be established through circumstantial proof and ‘any conflict in the evidence regarding [a] defendant's dominion and control over the [drugs and weapons] in question ... create[s] issues of witness credibility, and the jury's determination in that regard must be accorded great deference’ ” (People v. Crooks, 129 A.D.3d 1207, 1208–1209, 11 N.Y.S.3d 709 [2015] [citation omitted], lv. granted 26 N.Y.3d 966, 18 N.Y.S.3d 602, 40 N.E.3d 580 [2015], quoting People v. McCoy, 302 A.D.2d 797, 797–798, 754 N.Y.S.2d 590 [2003], lv. denied 100 N.Y.2d 540, 763 N.Y.S.2d 6, 793 N.E.2d 420 [2003] ; see People v. McLeod, 281 A.D.2d 746, 747, 722 N.Y.S.2d 114 [2001], lv. denied 96 N.Y.2d 921, 732 N.Y.S.2d 638, 758 N.E.2d 664 [2001] ).

Here, the trial testimony given by Purdy, Jenkins, Brooks and three other witnesses who observed defendant's drug activity, along with the physical evidence recovered from the residence and the storage unit established defendant's role in the drug enterprise, as well as his possession of narcotics, illegal weapons and ammunition. More particularly, with respect to counts 1 through 4, Purdy testified that, upon execution of the search warrant for the...