People v. Fineout

The Glennon Law Firm, P.C., Rochester (Peter J. Glennon of Counsel), for Defendant–Appellant.

Kristyna S. Mills, District Attorney, Watertown (Harmony A. Healy of Counsel), for Respondent.

PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, DeJOSEPH, AND NEMOYER, JJ.

Opinion

MEMORANDUM:

Defendant appeals from an order denying his CPL article 440 motion to vacate the 2011 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] ), criminal possession of marihuana in the second degree (§ 221.25 ), and two counts of criminally using drug paraphernalia in the second degree (§ 220.50[2], [3] ). The charges against defendant stemmed from an investigation of various individuals associated with a certain apartment in Watertown ( People v. Fineout, 96 A.D.3d 1601, 946 N.Y.S.2d 393, lv. denied 19 N.Y.3d 1025, 953 N.Y.S.2d 558, 978 N.E.2d 110 ). Defendant contends that, despite finding that the People committed Brady violations by failing to disclose that a witness had been offered consideration to induce his testimony against defendant, failing to correct that witness's testimony to the contrary, and compounding the error by emphasizing the misinformation on summation, County Court erred in denying his motion on the ground that such errors were harmless. We reject that contention.

Even assuming, arguendo, that the court's procedural ground for denial of the motion pursuant to CPL 440.10(3)(a) was unwarranted because defendant was not

afforded an adequate opportunity to develop a factual record for appellate review on direct appeal ( see generally People v. Wagstaffe, 120 A.D.3d 1361, 1363, 992 N.Y.S.2d 340, lv. denied 25 N.Y.3d 1173, 15 N.Y.S.3d 304, 36 N.E.3d 107 ), we conclude that, in addressing the merits ( see CPL 440.30 [2 ] ), the court properly determined that the Brady violations constituted harmless error inasmuch as there is no reasonable possibility that they might have contributed to the verdict ( see People v. Pressley, 91 N.Y.2d 825, 827, 666 N.Y.S.2d 555, 689 N.E.2d 525 ; People v. Rivera, 70 A.D.3d 1484, 1484, 894 N.Y.S.2d 661, lv. denied 15 N.Y.3d 756, 906 N.Y.S.2d 829, 933 N.E.2d 228 ). Here, there was overwhelming evidence that defendant, who was discovered sleeping on the couch in the subject apartment, had constructive possession of the drugs and paraphernalia, i.e., that he exercised dominion and control over the area in which the contraband was found ( see generally People v. Farmer, 136 A.D.3d 1410, 1411, 25 N.Y.S.3d 505 ). Indeed, there was evidence that defendant

resided at the apartment, had a significant role in facilitating drug activity for one of the individuals under investigation, conducted drug transactions out of the apartment and was arranging a sale on his cell phone just prior to his arrest, and was entrusted to remain alone in the apartment containing large amounts of various drugs, packing materials, and other equipment, much of which was in plain view, as well as a significant amount of money ( see People v. Bundy, 90 N.Y.2d 918, 920, 663 N.Y.S.2d 837, 686 N.E.2d 496 ; People v. Doleo, 261 A.D.2d 194, 195, 691 N.Y.S.2d 389, lv. denied 93 N.Y.2d 1017, 697 N.Y.S.2d 576, 719 N.E.2d 937 ; People v. Bernard, 237 A.D.2d 210, 210, 655 N.Y.S.2d 931, lv. denied 90 N.Y.2d 855, 661 N.Y.S.2d 182, 683 N.E.2d 1056 ; see also People v. McLeod, 281 A.D.2d 746, 747, 722 N.Y.S.2d 114, lv. denied 96 N.Y.2d 921, 732 N.Y.S.2d 638, 758 N.E.2d 664 ). Inasmuch as the overwhelming evidence of defendant's guilt was established by the testimony of other witnesses, the verdict did not turn solely or even predominately on the testimony of the subject witness ( see People v. Johnson, 107 A.D.3d 1161, 1166, 967 N.Y.S.2d 217, lv. denied 21 N.Y.3d 1075, 974 N.Y.S.2d 324, 997 N.E.2d 149 ; People v. Phillips, 55 A.D.3d 1145, 1149, 865 N.Y.S.2d 787, lv. denied 11 N.Y.3d 899, 873 N.Y.S.2d 275, 901 N.E.2d 769 ; People v. Tutt, 305 A.D.2d 987, 987, 758 N.Y.S.2d 570, lv. denied 100 N.Y.2d 588, 764 N.Y.S.2d 399, 796 N.E.2d 491 ). As the court properly observed, a significant portion of the subject witness's testimony was cumulative and, inasmuch as the relevant issue was defendant's constructive possession rather than whether he had personally brought the drugs into the apartment at some earlier time, we reject defendant's contention that the witness's testimony was critical to the verdict because he was the only individual to “directly link” defendant to the drugs.

It is hereby ORDERED that the order so appealed from is unanimously affirmed.