Opinion
KA 03-00240.
November 10, 2005.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered May 29, 2001. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the second degree and criminal possession of a controlled substance in the third degree.
PETER J. DI GIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT.
MICHAEL A. ARCURI, DISTRICT ATTORNEY, UTICA (CARLA V. DI MARCO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Present — Pigott, Jr., P.J., Scudder, Kehoe, Smith and Pine, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial of criminal possession of a controlled substance in the second degree (Penal Law § 220.18) and criminal possession of a controlled substance in the third degree (§ 200.16 [1]). Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction ( see People v. Gray, 86 NY2d 10, 19). In any event, that contention is without merit. We conclude that there is a "valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury" ( People v. Bleakley, 69 NY2d 490, 495), i.e., that defendant exercised "a level of control over the drugs [seized from his accomplice] sufficient to support a finding of constructive possession" ( People v. Manini, 79 NY2d 561, 575). We reject defendant's further contention that the verdict is against the weight of the evidence ( see generally Bleakley, 69 NY2d at 495).
Contrary to defendant's contention, County Court properly refused to suppress the cocaine seized during the execution of a search warrant authorizing the search of defendant's person. We conclude that the testimony of a police investigator and a police informant before the Magistrate was sufficient to establish probable cause to issue the search warrant ( see People v. McQueen, 11 AD3d 1005, 1006, lv denied 4 NY3d 765). In addition, the court properly refused to suppress the cocaine seized from defendant's accomplice. Defendant failed to establish a "legitimate expectation of privacy" with respect to the undergarments of his accomplice and therefore lacked standing to seek suppression of the cocaine that was seized from her ( People v. Wesley, 73 NY2d 351, 359).
We agree with defendant that the court erred in admitting the testimony of a police witness that a small amount of marihuana was recovered during a search of defendant ( see generally People v. Ventimiglia, 52 NY2d 350, 359-360). We nevertheless conclude that the error in admitting that testimony is harmless ( see generally People v. Crimmins, 36 NY2d 230, 241-242). We further conclude that the testimony of defendant's accomplice was sufficiently corroborated by evidence tending to connect defendant to the commission of the crimes ( see CPL 60.22; People v. Besser, 96 NY2d 136, 146; cf. People v. Johnson, 1 AD3d 891). The sentence is not unduly harsh or severe. We have reviewed defendant's remaining contention and conclude that it is without merit.