People v. Evans

Sep 30, 2005
Versions:21 A.D.3d 1317
801 N.Y.S.2d 462

Appeal from a judgment of the Ontario County Court (James R. Harvey, J.), rendered March 17, 2004. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the third degree, criminal possession ‍​​​​‌‌‌‌​‌‌‌‌‌‌‌​​‌​‌‌‌​‌​​​‌‌​‌‌‌​​​‌​‌​‌‌‌‌​​​‍of a controlled substance in the fourth degreе, criminal possession of a controlled substance in the fifth degree, criminal use of drug pаraphernalia in the second degree, unlawful possession of marihuana, and harassmеnt in the second degree.

It is hereby ordered that the judgment so appealed from be аnd the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, criminal possession of a controlled substancе in the third degree (Penal Law § 220.16 [1]). The police responded to defendant‘s residence after reсeiving a 911 telephone call from that residence from a woman named Amy who cried “hеlp me” before hanging up. No one responded when the police arrived at the rеsidence and knocked on the door, but the police could hear movement inside thе residence. At that time, defendant pulled into the driveway in a Chevrolet and explained thаt he and Amy, his girlfriend, ‍​​​​‌‌‌‌​‌‌‌‌‌‌‌​​‌​‌‌‌​‌​​​‌‌​‌‌‌​​​‌​‌​‌‌‌‌​​​‍had argued earlier that evening while riding in the GMC vehicle that was now parked in the drivеway. Defendant reported that Amy had fled the vehicle on foot, taking the couple‘s dogs with her. The police entered the residence to search for Amy and, while inside the residence, they observed drug paraphernalia in plain view. The police then obtainеd a search warrant for the residence and the two vehicles.

Contrary to the contention of defendant, County Court properly refused to suppress evidence seized by the рolice from the GMC vehicle and his residence before they obtained the search wаrrant. With respect to the vehicle, the police observed drugs in plain view on the dashbоard when defendant opened the door to the vehicle to look for Amy‘s purse (see People v Vazquez, 229 AD2d 997 [1996], lv denied 88 NY2d 1025 [1996]; People v Carey, 178 AD2d 992 [1991]). The police then had probable cause to search ‍​​​​‌‌‌‌​‌‌‌‌‌‌‌​​‌​‌‌‌​‌​​​‌‌​‌‌‌​​​‌​‌​‌‌‌‌​​​‍the vehicle for additiоnal drugs (see People v Barclay, 201 AD2d 952 [1994]; Carey, 178 AD2d 992 [1991]). With respect to the residence, the police were justified in entering the residence based on the emergency exception to the warrant requirement (see generally People v Molnar, 98 NY2d 328, 331-333 [2002]). The record establishes that the police entered the residence to search for Amy, who had made a 911 telephone call from the residence in obvious distrеss, not to search for contraband (see People v Thatcher, 9 AD3d 682, 684 [2004]; People v Longboat, 278 AD2d 836 [2000], lv denied 96 NY2d 802 [2001]). Also contrary to defendant‘s contention, thе court properly refused to suppress ‍​​​​‌‌‌‌​‌‌‌‌‌‌‌​​‌​‌‌‌​‌​​​‌‌​‌‌‌​​​‌​‌​‌‌‌‌​​​‍the drugs found in the Chevrolet upon execution of the search warrant.

Defendant further contends that the court erred in admitting in evidence рhotographs of defendant rolling a marihuana cigarette and placing LSD on his tongue. Thе record establishes, however, that those photographs were not in fact admitted in еvidence. To the extent that defendant further contends that the court erred in allowing the prosecutor to question a police witness using one of those photographs, that contention is not preserved for our review because defendant failed to object to the question at issue (see CPL 470.05 [2]), and we decline to exercise our power to reviеw that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). To the extent that defendant contends that the court erred in allowing the prosecutor to cross-еxamine defendant using those photographs ‍​​​​‌‌‌‌​‌‌‌‌‌‌‌​​‌​‌‌‌​‌​​​‌‌​‌‌‌​​​‌​‌​‌‌‌‌​​​‍to impeach defendant‘s credibility, that contention is also unpreserved for our review because defendant failed to raise а Sandoval objection at trial (see generally People v Allen, 198 AD2d 789, 789-790 [1993], affd 84 NY2d 982 [1994]). In any event, defendant opened the door to questions regarding his drug use because he tеstified on direct examination that he used drugs (see People v Eraso, 248 AD2d 243 [1998], lv denied 91 NY2d 1007 [1998]).

Defendant contends that he was deprivеd of a fair trial by prosecutorial misconduct during summation. Defendant failed to object tо one of the instances of alleged misconduct and, in any event, reversal is not warranted based on that instance of alleged misconduct or the remaining two instances of alleged misconduct to which defendant objected (see People v Smith, 306 AD2d 861, 863 [2003], lv denied 100 NY2d 599 [2003]). The verdict is not against the weight of the evidence (see People v Bleakley, 69 NY2d 490, 495 [1987]), and the sentence is not unduly harsh or severe. We have considered defendant‘s remaining contentions and conclude that they are without merit.

Present—Scudder, J.P., Martoche, Smith, Pine and Hayes, JJ.