Opinion
1300 KA 15–02145
12-22-2017
The PEOPLE of the State of New York, Respondent, v. Tony ROOKARD, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JULIE BENDER FISKE OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JULIE BENDER FISKE OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:Defendant appeals from a judgment convicting him, upon a nonjury verdict, of criminal possession of a controlled substance in the fifth degree ( Penal Law § 220.06[5] ). As defendant correctly concedes, he failed to preserve for our review his challenge to the legal sufficiency of the evidence inasmuch as he failed to renew his motion for a trial order of dismissal after presenting evidence (see People v. Huitt, 149 A.D.3d 1481, 1482, 52 N.Y.S.3d 597 [4th Dept. 2017], lv denied 30 N.Y.3d 950, 67 N.Y.S.3d 133, 89 N.E.3d 523 [2017] ; People v. Washington, 60 A.D.3d 1454, 1455, 875 N.Y.S.2d 732 [4th Dept. 2009], lv denied 12 N.Y.3d 922, 884 N.Y.S.2d 703, 912 N.E.2d 1084 [2009] ). In any event, we conclude that defendant's contention lacks merit. The evidence, viewed in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), is legally sufficient to establish that defendant committed the crime of criminal possession of a controlled substance in the fifth degree (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Contrary to defendant's contention, the evidence is legally sufficient to establish defendant's constructive possession of the crack cocaine (see People v. Holley, 67 A.D.3d 1438, 1439, 888 N.Y.S.2d 832 [4th Dept. 2009], lv denied 14 N.Y.3d 801, 899 N.Y.S.2d 135, 925 N.E.2d 939 [2010] ; People v. Fuller, 168 A.D.2d 972, 974, 564 N.Y.S.2d 918 [4th Dept. 1990], lv denied 78 N.Y.2d 922, 573 N.Y.S.2d 475, 577 N.E.2d 1067 [1991] ). The police officers encountered defendant in the kitchen of the residence, where the crack cocaine, a scale, a plate, and a razorblade were in open view. We therefore conclude that, based upon Penal Law § 220.25(2), the factfinder was entitled to presume that defendant knowingly possessed the crack cocaine. We further conclude that, "[i]nasmuch as the conviction is supported by legally sufficient evidence, defense counsel was not ineffective in failing to preserve defendant's legal sufficiency challenge for our review" ( People v. Hill, 147 A.D.3d 1501, 1502, 46 N.Y.S.3d 466 [4th Dept. 2017], lv denied 29 N.Y.3d 1080, 64 N.Y.S.3d 170, 86 N.E.3d 257 [2017] ; see People v. Goley, 113 A.D.3d 1083, 1085, 977 N.Y.S.2d 847 [4th Dept. 2014] ).
Viewing the evidence in light of the elements of the crime 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 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Although defendant testified that the drugs did not belong to him and that he had minimal ties to the residence where they were found, "[g]reat deference is to be accorded to the [factfinder's] resolution of credibility issues based upon its superior vantage point and its opportunity to view witnesses, observe demeanor and hear the testimony" ( People v. Martin, 122 A.D.3d 1424, 1425, 996 N.Y.S.2d 457 [4th Dept. 2014], lv denied 25 N.Y.3d 951, 30 N.E.3d 172 [2015] [internal quotation marks omitted] ), and we perceive no reason to disturb County Court's credibility determinations.
Contrary to defendant's contention, the court properly refused to suppress his statements to the police. Defendant's statements were not rendered involuntary by the fact that he may have overheard officers in another room discuss the possibility of involving Child Protective Services when they found defendant's three-year-old child in a residence with a loaded handgun and crack cocaine (see People v. Brown, 39 A.D.3d 886, 887, 835 N.Y.S.2d 451 [3d Dept. 2007], lv denied 9 N.Y.3d 873, 842 N.Y.S.2d 785, 874 N.E.2d 752 [2007] ). Finally, we conclude that the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.