Opinion
10-20-2016
The PEOPLE of the State of New York, Respondent, v. Kenneth BARTLETT, Defendant–Appellant.
White & White, New York (Brendan White of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Malancha Chanda of counsel), for respondent.
White & White, New York (Brendan White of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Malancha Chanda of counsel), for respondent.
SWEENY, J.P., RENWICK, MANZANET–DANIELS, GISCHE, WEBBER, JJ.
Judgment, Supreme Court, New York County (Robert M. Stolz, J. at suppression hearing; Edward J. McLaughlin, J. at jury trial and sentencing), rendered February 19, 2014, convicting defendant of criminal possession of a controlled substance in the third and fifth degrees, and sentencing him, as a second felony offender, to an aggregate term of 10 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence on the third-degree possession conviction to a term of 4 years, with 2 years' postrelease supervision, and otherwise affirmed.
The hearing court properly denied defendant's suppression motion. As the police followed defendant's car toward a location known for drug activity, the car moved from the travel lane to the parking lane without signaling and stopped in front of a fire hydrant. At a minimum, these facts gave the police the requisite objective, credible reason to approach defendant's stopped car, which led to the discovery of drugs (see e.g. People v. Ruiz, 100 A.D.3d 451, 953 N.Y.S.2d 582 [1st Dept.2012], lv. denied 20 N.Y.3d 1065, 962 N.Y.S.2d 616, 985 N.E.2d 926 [2013] ).
Defendant's legal sufficiency claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. We also find that the verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). Defendant's possession of 17 bags of drugs, as well as $1,360 in cash, supported the inference of intent to sell (see People v. Miller, 92 A.D.3d 520, 520, 938 N.Y.S.2d 88 [1st Dept.2012], lv. denied 18 N.Y.3d 996, 945 N.Y.S.2d 651, 968 N.E.2d 1007 [2012] ). There is no basis for disturbing the jury's credibility determinations, including its rejection of the testimony of a defense witness.
The court did not err in informing the jury, in the middle of their first day of deliberations, that deliberations would have to end the next day (a Friday) a few hours early, and, if necessary, resume on Monday. This innocuous scheduling announcement was informative and not coercive, as evidenced by the fact that the jury deliberated for roughly a full day after this announcement before rendering its verdict (see People v. Glover, 165 A.D.2d 761, 763, 564 N.Y.S.2d 273 [1st Dept.1990], lv. denied 77 N.Y.2d 877, 568 N.Y.S.2d 920, 571 N.E.2d 90 [1991] ). Defendant has not shown how informing the jurors that the Friday session would end a few hours early was any more coercive than the jurors' general awareness that if they did not reach a verdict by the end of a session they would be expected to return on the next working day.
We find the sentence excessive to the extent indicated.