People v. Henderson

Jul 3, 2003
Appeal No. 1
Versions:307 A.D.2d 746
762 N.Y.S.2d 553

Appeal from a judgment of Monroe County Court (Connell, J.), entered January 11, 2002, convicting defendant after a jury trial of criminal possession of a controlled substance in the third degree.

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

Memorandum: Defendant appeals from judgments convicting him after a jury trial of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]) (appeal No. 1) and criminal possession of a controlled substance in the fourth degree (§ 220.09 [1]) and criminally using drug paraphernalia in the second degree (§ 220.50 [2]) (appeal No. 2). We reject the contention of defendant that County Court erred in issuing a search warrant authorizing execution at night because the People did not request that relief in the warrant application. “If the court is further satisfied that grounds * * * exist for authorizing the search to be made at any hour of the day or night * * * it may make the search warrant executable accordingly” (CPL 690.40 [2]). The affidavit in support of the search warrant requested no-knock authorization due to the fact that drugs and implements to administer them could be easily disposed of or destroyed. That showing supports the nighttime search authorized by the warrant (see People v Harris, 47 AD2d 385, 388-389 [1975]).

We also reject defendant’s contention that the charge with respect to accessorial liability was improper (see generally Penal Law § 20.00). “ ‘[T]he court was not required to instruct the jury specifically, as requested, that defendant’s mere presence at the scene was insufficient to convict [him] under an acting in concert theory, since the charge as a whole conveyed *747the proper standards’ ” (People v Crayton, 278 AD2d 64, 64-65 [2000], lv denied 96 NY2d 782 [2001], quoting People v Brown, 248 AD2d 145 [1998], lv denied 91 NY2d 1005 [1998]). Finally, because the indictments “properly aggregated all the drugs simultaneously found in defendant’s constructive possession,” they were not defective in charging only one count of each possessory offense (People v Bryan, 270 AD2d 875, 875 [2000], lv denied 95 NY2d 904 [internal quotation marks omitted] [2000]). Present — Hurlbutt, J.P., Scudder, Kehoe, Burns and Gorski, JJ.