THE PEOPLE OF THE STATE OF NEW YORK, Rеspondent, v ROBERT J. ALBERTS, Appellant.
107970 (2018 NY Slip Op 03393)
Appellate Division of the Supreme Court of the State of New York, Third Department
May 10, 2018
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: May 10, 2018
Before: McCarthy, J.P., Clark, Mulvey, Aarons and Rumsey, JJ.
Alexander W. Bloomstein, Hillsdale, for appellant.
Stephen D. Ferri, Special Prosecutor, Binghamton, for respondent.
Clark, J.
MEMORANDUM AND ORDER
Appeals (1) from a judgment of the County Court of Cortland County (Campbell, J.), rendered July 30, 2015, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the second degree and unlawful manufacture of methamphetamine in the third degree, and (2) from a judgment of said court, rendered December 3, 2015, which resentenced defendant.
On an evening in June 2014, David Tobias of the Cortland County Sheriff‘s Department drove to the home of defendant‘s parents to investigate a tip that methamphetamine was being manufactured at that address. During the course of his investigation, Tobias made various observations that led him to believe that defendant and his two codefendants, Terry Maricle and Kristina Yerian, were manufacturing methamphetamine in a detached garage not far from the residence. Based
We affirm. Initially, we are unpersuaded by defendant‘s contention that his convictions are against the weight of the evidence. In a weight of the evidence review, we first assess whether, based on all of the credible evidence, a different verdict would have been unreasonable; where a different result would not have been unreasonable, we then “‘weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony‘” to determine if the verdict is supported by the weight of the evidence (People v Romero, 7 NY3d 633, 643 [2006], quoting People v Bleakley, 69 NY2d 490, 495 [1987]; accord People v Byrd, 152 AD3d 984, 986 [2017]). As relevant here, “[a] person is guilty of criminal possession of a controlled substance in the second degree when he or she knowingly and unlawfully possesses . . . one or more preparations, compounds, mixtures or substances containing methamphetamine, its salts, isomers or salts of isomers and said preparations, compounds,
The trial evidence established that, at some point, defendant was placed inside of Tobias’ patrol vehicle, that defendant had a glass of water within the vehicle and that Tobias later discovered white pills — which he recognized as pseudoephedrine, a precursor to methamphetamine — at the bottom of the water glass and on the floor of his vehicle. The evidence also established that, upon execution of the search warrant, the police seized — from the same area within the garage — precursors (specifically, blister packs for pseudoephedrine), reagents (including drain opеner, ammonium nitrate and muriatic acid), solvents (such as Coleman fuel, brake fluid and starting fluid) and equipment (namely, a pill grinder, a white pan, coffee filters, plastic tubing, a mask and glass jars) commonly used in the manufacture of methamphetamine. A state trooper involved in the search explained that the seized items, which could all be legally purchased, were typically used in thе “one-pot” method of methamphetamine manufacture and that the search team had recovered two separate one-pots from the garage. The testimony demonstrated that several samples of liquid — weighing a total of roughly three ounces — were taken from the one-pots and that, although there were gaps and inconsistencies in the chain of сustody, those samples ultimately tested positive for methamphetamine.
Because defendant was not found to be in physical possession of any of the seized items, the People had to establish that defendant constructively possessed the items by showing that he “exercised ‘dominion or control’ over the property by a sufficient level of control over the area in which the contraband is found” (People v Manini, 79 NY2d 561, 573 [1992]; see
It would not have been unreasonable for the jury to have acquitted defendant of both charges, as it could have found that defendant did not have dominion or control over the seized items, all of which could be plausibly found in a garage, by having a sufficient level of control over the garage (see People v Graham, 138 AD3d 1242, 1243 [2016], lv denied 28 NY3d 930 [2016]). Additionally, with respect to the сriminal possession charge, the jury could have also found that, due to the gaps and inconsistencies in the chain of custody, it could not be reasonably assured of the identity of the samples allegedly taken from the one-pots and, thus, that defendant possessed the requisite amount of methamphetamine (see generally People v Beverly, 5 AD3d 862, 864 [2004], lvs denied 2 NY3d 796, 804 [2004]; People v Howard, 305 AD2d 869, 870 [2003], lv denied 100 NY2d 583 [2003]; People v Haggray, 173 AD2d 962, 964 [1991], lv denied 78 NY2d 966 [1991]). However, viewing the foregoing evidence in a neutral light and deferring to the jury‘s credibility determinations (see People v Ford, 156 AD3d 1242, 1244 [2017]; People v Cochran, 140 AD3d 1198, 1200 [2016], lvs denied 28 NY3d 970 [2016]), we are satisfied that defendant‘s convictions are not against the weight of the evidence.
Next, contrary to defendant‘s assertions, Tobias’ warrantless entries into the garage were justified under the emergency exception to the warrant requirement. Under the
At the suppression hearing, Tobias testified that when he drove by the residence, he observed a light on in the garage and smoke emanating from a missing window pane on the garage door and that, upon pulling into the driveway, he was immеdiately greeted by defendant, who emerged from the garage. According to Tobias, defendant appeared “very nervous” and acted in a manner that led him to believe that defendant did not want him near the garage. Tobias also stated that, as he walked up the driveway, he smelled a strong “chemical odor” that he believed — based on his experience — to be аssociated with an active methamphetamine lab. Tobias testified that, after a brief encounter with defendant, he got back into his car, drove down the road and called his supervisor, who advised him to call for backup and return to the scene. According to Tobias, no more than 10 minutes had passed between his departure from and return to the residence.
Tobias testified that when he returned to the scene, he noticed that the broken window had been boarded up, but that he nonetheless continued to observe smoke and smell the strong odor. He stated that he was again greeted by defendant and that, in response to his questions about the origin of the smoke, defendant indicated that he and a woman had engaged
Defendant argues that Tobias would not have left the scene after his initial encounter with defendant if he was truly concerned with the safety risks posed by the suspected active methamphetamine lab. Tobias testified that he remained in the area, immediately сalled his supervisor for direction and left the residence for no more than 10 minutes. Under the circumstances presented after Tobias’ initial encounter with defendant, we are unconvinced that Tobias’ brief departure from the scene negates his asserted reason for entering the garage (see generally People v Molnar, 98 NY2d at 334). In our view, Tobias’ testimony established that he had objective rеasonable grounds — which included his observations of continuous smoke, a strong odor that he associated with an active methamphetamine lab, defendant‘s suspicious behavior and misrepresentations, as well as the noises he heard from within the garage after Yerian emerged — for believing that there was an active methamphetamine lab inside the garage that posed an immediate danger to any occupants (see People v Dillon, 44 AD3d 1068, 1070 [2007]; People v Thatcher, 9 AD3d 682, 684 [2004]; People v Stagnitto, 261 AD2d 890, 891 [1999], lv denied 93 NY2d 1028 [1999]). Considering that the smoke was emanating
We also reject defendant‘s contention that the search warrant was not supported by probable cause. “[I]n order to establish probable cause for thе issuance of a search warrant, the warrant application must demonstrate that there is ‘sufficient information to support a reasonable belief that evidence of a crime may be found in a certain place‘” (People v Pinkney, 90 AD3d 1313, 1315 [2011], quoting People v Church, 31 AD3d 892, 894 [2006], lv denied 7 NY3d 866 [2006]; see People v Pasco, 134 AD3d 1257, 1258 [2015]). The warrant application was supported by, among other things, the sworn deposition of Tobias, who attested to the observations that he mаde at the residence during his investigation of an allegedly anonymous tip that methamphetamine was being manufactured at defendant‘s family residence. While it was later revealed that Tobias knew the identity of the informant and that the information was the product of hearsay, Tobias’ independent, firsthand observations at the scene — namely, the smoke emitting from the broken garagе window, the odor associated with an active methamphetamine lab and defendant‘s suspicious demeanor and misrepresentations as to how many people were inside the garage, along with the fact that the broken window had been boarded up during Tobias’ brief absence — constituted sufficient information to support a reasonable belief that evidence of a crime may be found in the garage and the residence (see People v Vanhoesen, 31 AD3d 805, 806 [2006]; People v Ashton, 169 AD2d 353, 355-356 [1991], appeal dismissed 79 NY2d 897 [1992]; compare People v Wirchansky, 41 NY2d 130, 132-135 [1976]). Moreover, Tobias’ independent observations of smoke and a chemical odor were corroborated by the sworn deposition
Defendant further argues that County Court abused its discretion in denying his request for substitution of assigned counsel without first conducting an inquiry. Generally, although an indigent criminal defendant does not have the right to the “appointment of successive lawyers at [his or her] option,” he or she may be entitled to substitution of assigned counsel upon a showing of good cause (People v Sides, 75 NY2d 822, 824 [1990]; see People v Washington, 25 NY3d 1091, 1095 [2015]; People v Manley, 70 AD3d 1125, 1125 [2010]). Where a defendant makes a showing of good cause, supported by “specific factual allegations of serious complaints about counsel,” the trial court “must make at least a minimal inquiry, and discern meritorious complaints from disingenuous applications by inquiring as to the nature of the disagreement or its potential for resolution” (People v Porto, 16 NY3d 93, 100 [2010] [internal quotation marks and citations omitted]; see People v Sides, 75 NY2d at 825; People v Puccini, 145 AD3d 1107, 1109 [2016], lv denied 29 NY3d 1035 [2017]).
Although the record includes a March 2015 letter from County Court to defendant in which the court denies defendant‘s request for substitution of assigned counsel, the record does not disclose when defendant made such letter request or his reasons for doing so. Under these circumstances, we cannot evaluate whether defendant raised sufficiently serious complaints about his assigned counsel such that County Court was required to conduct a minimal inquiry. However, we note that defendant did not subsequently challenge County Court‘s denial of his request and that, during a pretrial conference held on the eve of trial, defendant solely raised issues with counsel‘s defense strategies — a complaint that does not establish good cause for substitution of assigned counsel (see People v Linares, 2 NY3d 507, 511 [2004]; People v Brown, 154 AD3d 1004, 1006 [2017], lv denied 30 NY3d 1113 [2018]; People v Bradford, 118 AD3d 1254, 1255 [2014], lv denied 24 NY3d 1082 [2014]).
Defendant‘s remaining arguments lack merit. With respect to his claim of ineffective assistance of counsel, a review of the record as a whole reveals that defense counsel provided defendant with meaningful representation, as he made relevant pretrial motions, registered timely evidentiary objections, ably cross-examined and impeached witnesses and gave appropriate
To the extent that we have not specifically addressed any of defendant‘s arguments, they have been reviewed and found to be meritless.
McCarthy, J.P., Mulvey, Aarons and Rumsey, JJ., concur.
ORDERED that the judgments are affirmed.