Opinion
904 KA 18-00458
12-23-2020
The PEOPLE of the State of New York, Respondent, v. Chevas J. JOHNSON, Defendant-Appellant.
MICHAEL JOS. WITMER, ROCHESTER, FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DEREK HARNSBERGER OF COUNSEL), FOR RESPONDENT.
MICHAEL JOS. WITMER, ROCHESTER, FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DEREK HARNSBERGER OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, WINSLOW, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a nonjury trial of criminal possession of a controlled substance in the third degree ( Penal Law § 220.16 [1] ) and attempted criminal sale of a controlled substance in the third degree (§§ 110.00, 220.39 [1] ), defendant contends that he had standing to challenge the stop of a vehicle in which he was a passenger, that County Court erred in refusing to hold a suppression hearing, and that the court applied the wrong standard when it analyzed the stop following the codefendant's suppression hearing. Inasmuch as defendant "withdrew his request for a suppression hearing," we conclude that he has waived his present contentions related to suppression ( People v. Maynard , 294 A.D.2d 866, 866, 740 N.Y.S.2d 915 [4th Dept. 2002], lv denied 98 N.Y.2d 699, 747 N.Y.S.2d 418, 776 N.E.2d 7 [2002] ; see People v. Smikle , 1 A.D.3d 883, 884, 767 N.Y.S.2d 727 [4th Dept. 2003], lv denied 1 N.Y.3d 634, 777 N.Y.S.2d 32, 808 N.E.2d 1291 [2004] ; see also People v. Quinney , 305 A.D.2d 1044, 1046, 760 N.Y.S.2d 786 [4th Dept. 2003], lv denied 100 N.Y.2d 586, 764 N.Y.S.2d 396, 796 N.E.2d 488 [2003] ).
Defendant further contends that the conviction is not based on legally sufficient evidence and that the verdict is against the weight of the evidence. Although some of defendant's challenges to the sufficiency of the evidence are not preserved for our review (see People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ), we exercise our power to review them as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ) and we conclude that none of defendant's contentions has merit.
Addressing specifically defendant's contention that he did not have dominion or control over the heroin recovered from the codefendant, we conclude that "[t]he evidence of defendant's orchestration of the drug selling operation was legally sufficient to support a finding that he had constructive possession, i.e., dominion and control, of the drugs recovered from his [codefendant]" ( People v. Shanks , 207 A.D.2d 710, 710, 616 N.Y.S.2d 591 [1st Dept. 1994], lv denied 84 N.Y.2d 1015, 622 N.Y.S.2d 927, 647 N.E.2d 133 [1994] ; see People v. Beard , 100 A.D.3d 1508, 1509, 953 N.Y.S.2d 805 [4th Dept. 2012] ; cf. People v. Hamilton , 291 A.D.2d 411, 411-412, 736 N.Y.S.2d 901 [2d Dept. 2002], lv denied 98 N.Y.2d 651, 745 N.Y.S.2d 510, 772 N.E.2d 613 [2002] ; see generally People v. Manini , 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563 [1992] ).
Contrary to defendant's remaining contentions, the evidence, viewed in the light most favorable to the People (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), is legally sufficient to support the conviction (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Finally, viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we further conclude that the verdict is not 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 ).