Opinion
283 KA 18–00411
03-20-2020
The PEOPLE of the State of New York, Respondent, v. Perry TOLBERT, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (BRITTNEY CLARK OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (BRITTNEY CLARK OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, LINDLEY, CURRAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of, inter alia, criminal possession of a controlled substance in the third degree ( Penal Law § 220.16[1] ), defendant contends that his conviction of that crime is not supported by legally sufficient evidence because the People failed to establish his intent to sell the drugs that were found in his apartment. We reject that contention. The jury was entitled to infer defendant's intent to sell the drugs based on the quantity of cocaine found in the apartment, i.e., an aggregate weight of 2.291 grams; the division of the drugs into a bulk amount hidden in the battery compartment of a toy and a smaller amount kept by the apartment door; and the presence of packaging materials and a digital scale (see People v. Freeman, 28 A.D.3d 1161, 1162, 813 N.Y.S.2d 597 [4th Dept. 2006], lv denied 7 N.Y.3d 788, 821 N.Y.S.2d 818, 854 N.E.2d 1282 [2006] ; see also People v. Hicks, 172 A.D.3d 1938, 1939, 99 N.Y.S.3d 573 [4th Dept. 2019] ). Furthermore, viewing the evidence in light of the elements of that count as charged to the jury (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 convicting him of that count is not against the weight of the evidence with respect to the element of intent (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). "The contention of defendant at trial that the drugs could have been for his personal use merely raised an issue of credibility for the jury to resolve" ( People v. Bell, 296 A.D.2d 836, 837, 745 N.Y.S.2d 359 [4th Dept. 2002], lv. denied 98 N.Y.2d 766, 752 N.Y.S.2d 6, 781 N.E.2d 918 [2002] ).
Finally, we conclude that the sentence is not unduly harsh or severe.