Opinion
864 KA 12-01687
09-26-2014
The PEOPLE of the State of New York, Respondent, v. Chaz K. DAVIS, Defendant–Appellant.
Davison Law Office PLLC, Canandaigua (Mary P. Davison of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Erin Tubbs of Counsel), for Respondent.
Davison Law Office PLLC, Canandaigua (Mary P. Davison of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Erin Tubbs of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, and LINDLEY, JJ.
Opinion
MEMORANDUM:Defendant appeals from a judgment convicting him, upon a nonjury verdict, of criminal sale of a controlled substance in the first degree (Penal Law § 220.43[1] ) and two counts of criminal possession of a controlled substance in the third degree (§ 220.16[1], [12] ). We reject defendant's contention that the verdict is against the weight of the evidence because one of the People's witnesses, a confidential informant who testified pursuant to a cooperation agreement, was not credible. “ ‘In a bench trial, no less than a jury trial, the resolution of credibility issues by the trier of fact and its determination of the weight to be accorded the evidence presented are entitled to great deference’ ” (People v. McCoy, 100 A.D.3d 1422, 1422, 953 N.Y.S.2d 788 ; see People v. Hollins, 278 A.D.2d 932, 932, 718 N.Y.S.2d 922, lv. denied 96 N.Y.2d 759, 725 N.Y.S.2d 286, 748 N.E.2d 1082 ). Here, 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 ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Contrary to the further contention of defendant, we conclude that County Court properly denied defendant's motion to dismiss the indictment based upon New York State's alleged violation of the Interstate Agreement on Detainers (IAD or Agreement) (see CPL 580.20 ). The IAD is a compact entered into by, inter alia, the United States and New York State and which, as relevant here, “prescribes procedures by which a member State may obtain for trial a prisoner incarcerated in another member jurisdiction” (United States v. Mauro, 436 U.S. 340, 343, 98 S.Ct. 1834, 56 L.Ed.2d 329 ; see New York v. Hill, 528 U.S. 110, 111, 120 S.Ct. 659, 145 L.Ed.2d 560 ; People v. Reilly, 136 A.D.2d 355, 359, 527 N.Y.S.2d 234, lv. denied 72 N.Y.2d 865, 532 N.Y.S.2d 515, 528 N.E.2d 905 ). It is well established that “the provisions of the Agreement are triggered only when a ‘detainer’ is filed with the custodial (sending) State by another State (receiving) having untried charges pending against the prisoner” (Mauro, 436 U.S. at 343, 98 S.Ct. 1834 ; see CPL 580.20, art. IV [a] ). Here, defendant's attendance in state court was secured pursuant to a writ of habeas corpus ad prosequendum, and not pursuant to the IAD (see CPL 580.30 ). Because New York “never filed a detainer against [defendant], the Agreement never became applicable and [New York] was never bound by its provisions” (Mauro, 436 U.S. at 361, 98 S.Ct. 1834 ).
We further conclude that there is no merit to defendant's contention that he was improperly sentenced as a second felony drug offender (see Penal Law § 70.71[1][b] ). Defendant's conviction of 21 U.S.C. § 841(a) for possession with intent to distribute more than five grams of cocaine base is equivalent to a conviction of criminal possession of a controlled substance in the third degree, a class B felony (see Penal Law § 220.16 ), and thus he was properly adjudicated a second felony drug offender (see People v. Reilly, 273 A.D.2d 143, 143, 711 N.Y.S.2d 381, lv. denied 95 N.Y.2d 937, 721 N.Y.S.2d 614, 744 N.E.2d 150 ; see also People v. Yensi, 251 A.D.2d 262, 263, 675 N.Y.S.2d 529, lv. denied 92 N.Y.2d 932, 680 N.Y.S.2d 473, 703 N.E.2d 285 ; see generally People v. Muniz, 74 N.Y.2d 464, 467–468, 548 N.Y.S.2d 633, 547 N.E.2d 1160 ).
Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.