Opinion
104662.
04-16-2015
The PEOPLE of the State of New York, Respondent, v. William A. BROOKS Jr., Appellant.
Lance N. Salisbury, Ithaca, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Damian M. Sonsire of counsel), for respondent.
Lance N. Salisbury, Ithaca, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Damian M. Sonsire of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, GARRY and LYNCH, JJ.
Opinion
PETERS, P.J.Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered February 15, 2011, upon a verdict convicting defendant of the crimes of attempted robbery in the second degree, attempted criminal possession of a controlled substance in the third degree and petit larceny.
Following a jury trial, defendant was convicted of attempted robbery in the second degree, attempted criminal possession of a controlled substance in the third degree and petit larceny. He now appeals, arguing that the verdict was not supported by legally sufficient evidence and was against the weight of the evidence. Finding neither argument persuasive, we affirm.
By making a particularized trial motion to dismiss directed at the specific deficiencies now claimed on appeal, defendant preserved his legal sufficiency claim for our review (see People v. Carncross, 14 N.Y.3d 319, 324–325, 901 N.Y.S.2d 112, 927 N.E.2d 532 [2010] ; People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ).
At trial, the victim testified that, on the afternoon of July 25, 2010, she went to a residence in the City of Elmira, Chemung County, where she knew crack cocaine was being sold. While there, defendant “fronted” her several bags of crack cocaine, which she thereafter smoked over the course of several hours, upon her assurances that she had money at her apartment to pay for the drugs. The victim explained that, at some point in the evening, defendant and another began demanding payment for the drugs and then forcibly removed her from the residence, dragged her off of the premises and pushed her into defendant's vehicle, all while repeatedly telling her that they were going to her apartment to get the money. Upon arriving at the victim's apartment and learning that she did not have the money, defendant threatened to physically assault her and demanded that she call someone to bring her the money. The victim complied and contacted her paramour who, in turn, contacted the police. Defendant and the other individual then proceeded to ransack the entire apartment in a search for money and items of value. According to the victim, the other individual brandished a weapon at one point and both continued to threaten her throughout that time. Police ultimately arrived at the scene and, following several controlled phone calls between the victim and her paramour, the victim exited the residence and was taken into custody. Officers thereafter entered the apartment and arrested defendant, who was situated in close proximity to what appeared to be a handgun. Upon a search of defendant's vehicle following his arrest, several items from the victim's residence were discovered therein.
Viewed in the light most favorable to the People (see People v. Gordon, 23 N.Y.3d 643, 649, 992 N.Y.S.2d 700, 16 N.E.3d 1178 [2014] ; People v. Charles, 124 A.D.3d 986, 987 [2015] ), this evidence was legally sufficient to support defendant's convictions (see Penal Law §§ 110.00, 155.25, 160.10[1] ; 220.16[1]; People v. Djanie, 31 A.D.3d 887, 887, 817 N.Y.S.2d 783 [2006], lv. denied 7 N.Y.3d 866, 824 N.Y.S.2d 611, 857 N.E.2d 1142 [2006] ; People v. Zabala, 290 A.D.2d 578, 578, 735 N.Y.S.2d 244 [2002], lv. denied 97 N.Y.2d 735, 740 N.Y.S.2d 708, 767 N.E.2d 165 [2002] ). Defendant does not dispute that evidence on each of the elements of the crimes for which he was convicted was supplied through the trial testimony of the victim, but instead maintains that the victim's testimony was incredible as a matter of law. At trial, the victim recounted her criminal history and longstanding struggles with drug abuse, which included several inpatient treatment programs and relapses of usage, and was admittedly “pretty high” from her “binge” and experiencing symptoms of withdrawal-such as paranoia-while defendant was at her apartment. Furthermore, as defendant contends, there were several inconsistencies and contradictions in the victim's testimony, and portions of her testimony were questionable. However, these issues were fully developed at trial and highlighted to the jury, and the victim's testimony was not contradicted by any compelling evidence offered by defendant so as to render it unworthy of belief or “establish a basis upon which to disturb the jury's resolution of these credibility issues” (People v. Mitchell, 57 A.D.3d 1308, 1309, 871 N.Y.S.2d 445 [2008] [internal quotation marks, brackets and citations omitted]; see People v. Brabham, 126 A.D.3d 1040, 1041, 4 N.Y.S.3d 386 [2015] ; People v. Wingo, 103 A.D.3d 1036, 1037, 962 N.Y.S.2d 422 [2013], lv. denied 21 N.Y.3d 1021, 971 N.Y.S.2d 503, 994 N.E.2d 399 [2013] ; People v. Moyer, 75 A.D.3d 1004, 1006, 906 N.Y.S.2d 175 [2010] ). Further, after independently weighing the evidence and considering it in a neutral light, while according deference to the jury's superior ability to evaluate credibility (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ; People v. Robinson, 117 A.D.3d 1099, 1101, 984 N.Y.S.2d 479 [2014], lvs. denied 23 N.Y.3d 1059, 1066, 994 N.Y.S.2d 318, 325, 18 N.E.3d 1139, 1146 [2014] ), we cannot say that the verdict was contrary to the weight of the evidence.
To the extent that defendant also argues that, absent corroborating evidence, the victim's testimony was insufficient to prove that the substance he allegedly possessed was, in fact, cocaine, we need only note that the existence of a controlled substance is not an element of the crime of attempted criminal possession of a controlled substance in the third degree (see Penal Law §§ 110.00, 220.16[1] ; see also People v. Alameen, 264 A.D.2d 937, 938, 697 N.Y.S.2d 173 [1999], lv. denied 94 N.Y.2d 819, 702 N.Y.S.2d 589, 724 N.E.2d 381 [1999] ; People v. Sessions, 181 A.D.2d 842, 843, 581 N.Y.S.2d 107 [1992], lv. denied 80 N.Y.2d 837, 587 N.Y.S.2d 922, 600 N.E.2d 649 [1992] ; compare People v. Martin, 81 A.D.3d 1178, 1180, 917 N.Y.S.2d 415 [2011], lv. denied 17 N.Y.3d 819, 929 N.Y.S.2d 807, 954 N.E.2d 98 [2011] ).
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ORDERED that the judgment is affirmed.
LAHTINEN, GARRY and LYNCH, JJ., concur.