Opinion
2014-06-25
The PEOPLE, etc., respondent, v. Allen ROBINSON, appellant.
Edward Cigna, Stony Point, N.Y., for appellant. Thomas P. Zugibe, District Attorney, New City, N.Y. (Carrie A. Ciganek of counsel), for respondent.
Edward Cigna, Stony Point, N.Y., for appellant. Thomas P. Zugibe, District Attorney, New City, N.Y. (Carrie A. Ciganek of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., and LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, and COLLEEN D. DUFFY, JJ.
Appeal by the defendant from a judgment of the County Court, Rockland County (Nelson, J.), rendered November 29, 2011, convicting him of criminal possession of a controlled substance in the second degree, criminal possession of a controlled substance in the third degree, and unlawful possession of marijuana, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, without a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the judgment is affirmed.
The County Court properly denied, without a hearing, that branch of the defendant's omnibus motion which was to suppress physical evidence. The defendant's supporting papers were conclusory and failed to set forth factual allegations sufficient to warrant a hearing ( seeCPL 710.60[3]; People v. Bryant, 8 N.Y.3d 530, 533, 838 N.Y.S.2d 7, 869 N.E.2d 7;People v. Mendoza, 82 N.Y.2d 415, 427, 604 N.Y.S.2d 922, 624 N.E.2d 1017;People v. Gruden, 42 N.Y.2d 214, 218, 397 N.Y.S.2d 704, 366 N.E.2d 794;People v. Smith, 69 A.D.3d 657, 657, 891 N.Y.S.2d 294).
The defendant failed to preserve for appellate review his contention that the County Court improperly permitted two New York State Troopers, who were not formally qualified as expert witnesses, to testify regarding the street value of 647 80–milligram Oxycodene pills that were recovered from him, that, based on the number of pills recovered, they were not for personal use, and that a Mountain Dew can with a “false bottom” seized from the defendant was an object used to secretly transport narcotics. In any event, the defendant's contention is without merit. Although not formally qualified as expert witnesses, the Troopers demonstrated through their testimony that they had sufficient experience to qualify as expert witnesses on street-level drug dealing ( see People v. Tevaha, 204 A.D.2d 92, 93, 611 N.Y.S.2d 179,affd.84 N.Y.2d 879, 620 N.Y.S.2d 786, 644 N.E.2d 1342;People v. Lacend, 216 A.D.2d 112, 628 N.Y.S.2d 96;see also People v. Syshawn, 200 A.D.2d 778, 607 N.Y.S.2d 364).
The County Court properly admitted into evidence the Mountain Dew can as evidence of the defendant's intent to sell drugs ( see People v. Randolph, 157 A.D.2d 866, 550 N.Y.S.2d 741;United States v. Carlson, 613 F.3d 813, 820 [8th Cir.2010];see also People v. McCray, 51 N.Y.2d 594, 605, 435 N.Y.S.2d 679, 416 N.E.2d 1015;People v. Whitney, 224 A.D.2d 648, 639 N.Y.S.2d 416;People v. Williams, 195 A.D.2d 889, 890, 600 N.Y.S.2d 836;People v. Jones, 138 A.D.2d 405, 525 N.Y.S.2d 689).
The defendant's contention that the sentence imposed was based on considerations not presented in evidence is unpreserved for appellate review ( see People v. Jorgensen, 113 A.D.3d 793, 795, 978 N.Y.S.2d 361;People v. Harris, 101 A.D.3d 900, 954 N.Y.S.2d 920) and, in any event, without merit ( see People v. Jorgensen, 113 A.D.3d at 795, 978 N.Y.S.2d 361). Moreover, the sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).