THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v ANTHONY BUCHANAN, Also Known as SCIENCE, Also Known as SCIENTIFIC, Appellant.
Supreme Court, Appellate Division, Third Department, New York
(May 10, 2012)
[944 NYS2d 378]
Egan Jr., J.
Egan Jr., J. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered July 19, 2002 in Albany County, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the first degree, criminal possession of a controlled substance in the second degree, criminal possession of a controlled substance in the third degree (two counts), criminal use of drug paraphernalia in the second degree (two counts) and criminal possession of a weapon in the third degree (four counts).
In August 2001, defendant became a target of a narcotics investigation and, after observing, among other things, defendant enter and exit 677 Third Street and 46 Lexington Avenue in the City of Albany on a number of occasions, the Albany Police Department obtained and executed search warrants at those locations. As a result, defendant was indicted and charged with criminal possession of a controlled substance in the first degree, criminal possession of a controlled substance in the second degree, criminal possession of a controlled substance in the third degree (two counts), criminal use of drug paraphernalia in the second degree (two counts) and criminal possession of a weapon in the third degree (four counts). Following a jury trial, defendant was convicted on all counts and sentenced as a second felony offender to an aggregate prison term of 21 years to life. This appeal by defendant ensued.
Defendant‘s initial claim—that the verdict is not supported by legally sufficient evidence—is unpreserved for our review in light of defendant‘s failure to make a particularized motion for dismissal at the close of the People‘s case (see People v Caston, 60 AD3d 1147, 1148 [2009]). However, inasmuch as defendant also contends that the verdict is against the weight of the evidence, “we will consider the evidence adduced as to each of the elements of the challenged crimes in the context of that review” (People v Kennedy, 75 AD3d 766, 767 [2010], lv denied 15 NY3d 853 [2010] [internal quotation marks and citation omitted]). As the People proceeded under the theory of constructive possession, they were required to establish that defendant exercised “dominion and control over the [contraband or the] area where
Here, the evidence at trial revealed that beginning on August 7, 2001 and continuing on a number of days thereafter, various members of the Albany Police Department‘s Community Response Unit (hereinafter CRU) undertook either fixed or roving surveillance of defendant and documented his travels back and forth between 46 Lexington Avenue and 677 Third Street—the latter of which police believed to be defendant‘s residence. On August 31, 2001, two officers set up fixed surveillance across the street from 677 Third Street at approximately 6:00 a.m. Later that morning, defendant emerged and got into a black 2001 Infiniti—a vehicle he had been observed driving on a number of prior occasions—and drove to the vicinity of 46 Lexington Avenue.
At approximately 1:00 p.m., the surveillance team that was set up across the street from 46 Lexington Avenue saw defendant approach on foot with Philip Stanfield and proceed to that address. Defendant entered while Stanfield remained outside, looking up and down the street. When defendant emerged, he handed Stanfield a plastic bag containing a “large chunk of [an] off-white substance,” which Stanfield placed down his pants. Defendant and Stanfield then departed the Lexington Avenue address on foot but returned within the hour. This time, both defendant and Stanfield entered and stood inside the doorway. From their vantage point, the surveillance team again observed defendant hand Stanfield a large chunk of an off-white substance—“approximately the size of an egg.”1 Both of the encounters between defendant and Stanfield were captured on videotape that, together with certain still photographs, were admitted into evidence.
The police then obtained and executed search warrants for 46 Lexington Avenue, 677 Third Street and the Infiniti. As a result of those searches, the police seized a .45-caliber handgun, a Tec 9 submachine gun, ammunition and more than two ounces of crack cocaine packaged in several plastic baggies from a common hallway at the 46 Lexington Avenue address, together with 10 ounces of crack cocaine, two digital scales, rubber gloves,
Viewing this evidence in the light most favorable to the People, we are satisfied that there is a valid line of reasoning from which a jury reasonably could conclude that defendant exercised dominion and control over the drugs and guns in issue (see generally People v Bleakley, 69 NY2d 490, 495 [1987]; compare People v Carmichael, 68 AD3d 1704, 1705 [2009], lv denied 14 NY3d 798 [2010]; People v Oldacre, 53 AD3d 675, 678-679 [2008])—notwithstanding the fact that defendant‘s access to the contraband may not have been exclusive (see e.g. People v Pinkney, 90 AD3d 1313, 1314-1315 [2011] [a defendant may be found guilty of constructive criminal possession of a weapon located on premises even though others may have had access thereto]). Further, despite defendant‘s protestations to the contrary, we do not find the verdict to be against the weight of the evidence.
Nor are we persuaded that Supreme Court erred in denying defendant‘s motion for a mistrial based upon the People‘s failure to notify defendant that they intended to introduce a statement made by him during booking to establish that he resided at the Third Street address. Simply put, the People were not required to include “pedigree information obtained in response to a routine question asked during the booking process” in their
We reach a similar conclusion with respect to defendant‘s motion for a mistrial based upon the People‘s asserted violation of Supreme Court‘s Molineux ruling. When the People made their
As to the substance of Supreme Court‘s analysis, it is apparent that the contemporaneous uncharged sales were admissible to establish the intent to sell element under
Finally, based upon our review of the record as a whole, we cannot say that defendant was denied the effective assistance of counsel. To the extent that defendant faults counsel for failing to request a limiting instruction—either following Supreme Court‘s ruling as to the admissibility of the contemporaneous uncharged sales or at the time of the final charge—counsel may
Mercure, J.P., Spain, Kavanagh and Stein, JJ., concur. Ordered that the judgment is affirmed.