Opinion
109696
04-13-2023
The PEOPLE of the State of New York, Respondent, v. James A. THOMAS, Appellant.
John A. Cirando, Syracuse, for appellant. Palmer J. Pelella, Special Prosecutor, Vestal, for respondent.
John A. Cirando, Syracuse, for appellant.
Palmer J. Pelella, Special Prosecutor, Vestal, for respondent.
Before: Lynch, J.P., Aarons, Pritzker, Fisher and McShan, JJ.
MEMORANDUM AND ORDER
Aarons, J. Appeal from a judgment of the County Court of Broome County (Joseph F. Cawley, J.), rendered August 21, 2017, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fourth degree and tampering with physical evidence.
Defendant was charged by indictment with various crimes stemming from an incident where he and the codefendant, who ultimately pleaded guilty, were discovered in a bathroom while flushing heroin down a toilet. Following a jury trial, defendant was convicted of criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fourth degree and tampering with physical evidence. County Court thereafter sentenced defendant to a term of imprisonment followed by a period of postrelease supervision. Defendant appeals.
At trial, the People tendered testimonial evidence that, upon executing a search warrant, law enforcement officials found defendant, with the codefendant, barricaded in a small bathroom trying to flush heroin down the toilet. Once law enforcement officials gained access into the bathroom, a tied, clear plastic bag – which a detective called a "knotted wrap" – was found on the floor in the corner and had a powdery substance in it. A test of the substance in the knotted wrap revealed it to be heroin. The detective also testified that drug sellers typically possess knotted wraps and that the drug paraphernalia – glassine envelopes, a razor blade, small rubber bands, protective face masks and a metal sifter – that was discovered in the house was consistent with drugs being sold.
Contrary to defendant's assertion, the evidence, when viewed in the light most favorable to the People, is legally sufficient to establish that defendant had dominion or control over the bag containing heroin so as to support the convictions for criminal possession of a controlled substance in the third and fourth degrees (see People v. Paul, 202 A.D.3d 1203, 1207, 162 N.Y.S.3d 207 [3d Dept. 2022], lv denied 38 N.Y.3d 1034, 169 N.Y.S.3d 224, 189 N.E.3d 331 [2022] ; People v. Shabazz, 177 A.D.3d 1170, 1172, 113 N.Y.S.3d 397 [3d Dept. 2019] ; People v. Banks, 14 A.D.3d 726, 727–728, 786 N.Y.S.2d 861 [3d Dept. 2005], lv denied 4 N.Y.3d 851, 797 N.Y.S.2d 425, 830 N.E.2d 324 [2005] ). Also, in view of the testimony that defendant was flushing heroin down the toilet as law enforcement officials tried to enter the bathroom, legally sufficient evidence supports the conviction of tampering with physical evidence (see People v. Sanders, 185 A.D.3d 1280, 1286, 128 N.Y.S.3d 350 [3d Dept. 2020], lv denied 35 N.Y.3d 1115, 133 N.Y.S.3d 517, 158 N.E.3d 534 [2020] ). To the extent that defendant argues that the People failed to adduce legally sufficient proof on the element of intent to sell for criminal possession of a controlled substance in the third degree (see Penal Law § 220.16[1] ), such argument is unpreserved because defendant did not raise this specific ground in his trial motion to dismiss (see People v. Drumgold, 206 A.D.3d 1044, 1045 n. 2, 168 N.Y.S.3d 726 [3d Dept. 2022], lv denied 38 N.Y.3d 1150, 174 N.Y.S.3d 39, 194 N.E.3d 746 [2022] ).
Defendant also challenges the verdict as being against the weight of the evidence. For his part, defendant testified to a contrary version of the events at issue. If the jury believed defendant, an acquittal would not have been unreasonable (see People v. Baber, 182 A.D.3d 794, 799, 123 N.Y.S.3d 222 [3d Dept. 2020], lv denied 35 N.Y.3d 1064, 129 N.Y.S.3d 365, 152 N.E.3d 1167 [2020] ). That said, having been presented with conflicting proof, the jury apparently did not credit defendant's testimony in reaching its verdict. Viewing the evidence in a neutral light and deferring to the jury's credibility determination, the verdict convicting defendant of criminal possession of a controlled substance in the third and fourth degrees (see People v. Paul, 202 A.D.3d at 1208, 162 N.Y.S.3d 207 ; People v. Smith, 201 A.D.3d 1126, 1130–1131, 159 N.Y.S.3d 592 [3d Dept. 2022], lv denied 38 N.Y.3d 1035, 169 N.Y.S.3d 241, 189 N.E.3d 348 [2022] ; People v. Wheeler, 159 A.D.3d 1138, 1140, 72 N.Y.S.3d 220 [3d Dept. 2018], lv denied 31 N.Y.3d 1123, 81 N.Y.S.3d 383, 106 N.E.3d 766 [2018] ) and tampering with physical evidence (see People v. Freeman, 106 A.D.3d 590, 591, 965 N.Y.S.2d 127 [1st Dept. 2013], lv denied 21 N.Y.3d 1073, 974 N.Y.S.2d 322, 997 N.E.2d 147 [2013] ; People v. Shoga, 89 A.D.3d 1225, 1228–1229, 933 N.Y.S.2d 126 [3d Dept. 2011], lv denied 18 N.Y.3d 886, 939 N.Y.S.2d 756, 963 N.E.2d 133 [2012] ) is not against the weight of the evidence.
As to defendant's allegations of prosecutorial misconduct, the record does not support the claim that the People threatened the codefendant with a perjury charge if he failed to give certain testimony. Rather, the record reflects that the prosecutor advised the codefendant that he could be charged with perjury if he did not testify truthfully. In addition, upon County Court's inquiry, the codefendant stated that he was never threatened by the prosecutor. Under these circumstances, there was no prosecutorial misconduct (see People v. Pine, 82 A.D.3d 1498, 1501–1502, 919 N.Y.S.2d 564 [3d Dept. 2011], lv denied 17 N.Y.3d 820, 929 N.Y.S.2d 809, 954 N.E.2d 100 [2011] ). Defendant's prosecutorial misconduct argument based upon a Brady violation is also without merit given that defense counsel was provided with "a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People's witnesses" ( People v. Osborne, 91 N.Y.2d 827, 828, 666 N.Y.S.2d 556, 689 N.E.2d 526 [1997] [internal quotation marks and citation omitted]; see People v. Carter, 131 A.D.3d 717, 720, 15 N.Y.S.3d 855 [3d Dept. 2015], lv denied 26 N.Y.3d 1007, 20 N.Y.S.3d 548, 42 N.E.3d 218 [2015] ; People v. Burroughs, 64 A.D.3d 894, 898, 882 N.Y.S.2d 751 [3d Dept. 2009], lv denied 13 N.Y.3d 794, 887 N.Y.S.2d 544, 916 N.E.2d 439 [2009] ).
Finally, the records from the Department of Corrections and Community Supervision reflect that defendant has completed the sentence and has been discharged from parole supervision. In view of this, defendant's argument that the imposed sentence is unduly harsh or severe is moot (see People v. VanSlyke, 207 A.D.3d 1004, 1004–1005, 170 N.Y.S.3d 916 [3d Dept. 2022] ). Defendant's remaining contention has been considered and is unavailing.
Lynch, J.P., Pritzker, Fisher and McShan, JJ., concur.
ORDERED that the judgment is affirmed.