People v. KalabakasPeople v. Kalabakas
| People v Kalabakas |
| Decided on May 21, 2020 |
| Appellate Division, Third Department |
| 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 21, 2020
111742
v
Vasilios Kalabakas, Appellant.
Calendar Date: March 24, 2020
Before: Clark, J.P., Mulvey, Devine, Pritzker and Colangelo, JJ.
Steven M. Sharp, Albany, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Colangelo, J.
Appeal from a judgment of the Supreme Court (Lynch, J.), rendered February 7, 2019 in Albany County, upon a verdict convicting defendant of the crimes of criminal possession of 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 (three counts), criminal possession of a weapon in the second degree and criminal possession of a controlled substance in the seventh degree, and the violation of unlawful possession of marihuana.
On March 15, 2018 at approximately 10:27 p.m., State Trooper Daniel Mauro effected a traffic stop on Interstate 87 in Albany County of a vehicle with darkly tinted windows that was being driven erratically by its owner, Ernesto Bocio, in which defendant was a passenger. Upon approach, Mauro detected the strong odor of burnt and raw marihuana coming from both sides of the vehicle, observed marihuana shake — flakes of vegetation — on defendant and Bocio's shirts and inside the vehicle, and discovered that Bocio was driving with a suspended license. Bocio and defendant were asked to exit the vehicle, were observed to be very nervous and provided somewhat inconsistent accounts of their travel plans, although both indicated that they were headed to the City of Buffalo, Erie County. Bocio admitted to smoking marihuana earlier and was found to be in possession of cocaine and $4,000 in cash. During a search of defendant, he became uncooperative, and both defendant and Bocio were put in handcuffs for officer safety. A search of the vehicle by Mauro and another trooper disclosed several bags of cocaine, crack cocaine and heroin, a bag of pills identified as Alprazolam, a controlled substance, and a bag of leafy marihuana, all secreted in a hidden after-market compartment in the dashboard. The street value of the controlled substances, described by police investigators trained in drug trafficking practices as uncut and pure, was estimated to be in the hundreds of thousands of dollars after mixing in fillers and packaging it for sale. Also found in the compartment were a loaded, operable semi-automatic .40 caliber pistol and tobacco leaves used to roll marihuana joints. An iPhone, a flip-phone and Bocio's wallet were also recovered from the front center console of the vehicle next to the shift. Defendant and Bocio were then arrested. It was later determined that the hidden compartment was mechanically operable using a magnet found in Bocio's wallet.
Defendant was thereafter charged, in a joint indictment with Bocio, with one count each of the crimes of criminal possession of a controlled substance in the first, second, fifth and seventh degrees, three counts of criminal possession of a controlled substance in the third degree and one count of criminal possession of a weapon in the second degree, as well as the violation of unlawful possession of marihuana. Supreme Court denied defendant's motion to suppress his statements to police and the physical evidence seized from the vehicle, but granted defendant's motion for a separate trial and the matter proceeded to a jury trial. Upon the People's motion, the court dismissed the charge of criminal possession of a controlled substance in the fifth degree, and defendant was convicted of the remaining charges. Defendant was sentenced for his conviction of criminal possession of a controlled substance in the first degree to a prison term of eight years, followed by five years of postrelease supervision, and to lesser concurrent prison terms followed by periods of postrelease supervision for the remaining felony convictions.[FN1] Defendant appeals.
We affirm. Initially, we are unpersuaded by defendant's contention that count 1 of the indictment — charging criminal possession of a controlled substance in the first degree —impermissibly combined his possession of heroin and cocaine to satisfy the eight-ounce aggregate weight threshold element of that crime and was, therefore, facially duplicitous. Contrary to the People's contention, this challenge was preserved by defendant's pretrial motion to dismiss the indictment as duplicitous. In response, the People specifically objected to dismissal by arguing that count 1 properly aggregated the weight of two narcotic drugs found in defendant's possession to reach the weight threshold. Although the record does not reflect that Supreme Court expressly ruled on this aspect of defendant's motion, given that defendant timely filed a motion raising this claim and seeking a ruling, he "is deemed to have thereby protested the court's . . . failure to rule . . . sufficiently to raise a question of law with respect to such . . . failure regardless of whether any actual protest thereto was registered" (CPL 470.05 [2]).[FN2] Addressing the merits, defendant's challenge to count 1 does not withstand analysis. As relevant here, criminal possession of a controlled substance in the first degree requires proof that defendant knowingly and unlawfully possessed "one or more . . . substances containing a narcotic drug and said . . . substances are of an aggregate weight of eight ounces or more" (Penal Law § 220.21 [1] [emphases added]).[FN3] To the extent that defendant's challenge appears to be one of statutory interpretation, it lacks merit, as that subsection contemplates that a person can be charged with possessing more than one narcotic drug and that the weights of the narcotics may be combined to reach the threshold weight requirement. This is supported by the use of the plural "one or more . . . substances" that contain "a narcotic drug," and that "said . . . substances" must have the requisite weight (Penal Law § 220.21 [1] [emphasis added]). This statute does not, on its face, require possession of a single narcotic drug and, instead, by its terms, permits prosecution for possession of more than one substance, each containing "a narcotic drug." Thus, the singular phrase, "a narcotic," refers to what must be found in each of the "one or more substances" possessed, and does not require that the narcotic be the same in each of the substances. As such, "giving effect to the plain meaning [of the statutory text" (People v Roberts,
With regard to defendant's claim of duplicity as to count 1, a "count is duplicitous when it charges more than one crime that is completed by a discrete act in the same count" (People v Madsen,
To that end, Penal Law § 220.20 (1), like other drug possession statutes (see Penal Law art 20), "does not distinguish between the types of narcotics possessed, but treats all drugs classified as narcotics interchangeably" (People v Martin,
Defendant's argument that, aside from facial duplicity, the trial evidence rendered count 1 duplicitous is not preserved for our review (see People v Allen,
Defendant's challenge to Supreme Court's denial of his motion to suppress the physical evidence recovered from the vehicle is likewise without merit. Defendant does not dispute that Mauro had authority to stop the vehicle based upon, among other things, Bocio's erratic driving and the vehicle's very dark tinted windows (see Vehicle and Traffic Law § 375 [12-a] [b] [2]; People v Brown,
At the suppression hearing, the troopers involved in the search testified that, during an inspection of the glove box and dashboard, they noticed a panel in the dashboard under the glove box that contained mismatched and stripped screws and that a removable panel next to it had been glued shut. After taking out a removable trim piece in the dashboard, the stripped screws fell out, and the troopers were able to see several plastic bags containing drugs and the firearm in the hidden compartment. Another panel was temporarily removed to gain access to the hidden contraband. Contrary to defendant's claim, the troopers' search of the conspicuous hidden compartment was justified and did not cause damage or involve "tearing apart the glove compartment area," and all panels removed during the search could be reattached (compare People v Gomez,
Defendant further argues that the convictions are not supported by legally sufficient evidence and are contrary to the weight of the evidence. He focuses on the limited direct evidence connecting him to the drugs and gun found in the hidden compartment which, he contends, failed to establish his knowing possession of those items. Although defense counsel moved for a trial order of dismissal of all counts on this ground at the close of proof,[FN5] he conceded that the automobile presumption applied to the controlled substances found in that compartment, providing presumptive evidence of defendant's knowing possession (see Penal Law § 220.25 [1]). Accordingly, defendant's legal sufficiency challenge is preserved only with regard to his convictions of criminal possession of a weapon in the second degree and unlawful possession of marihuana (see People v Henry,
"When reviewing a legal sufficiency claim, we view the evidence in the light most favorable to the People and evaluate whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime[s] charged" (People v Henry,
The testimony of the troopers involved in the investigation established that the loaded firearm found in the hidden compartment was determined to be operable. Defendant's dominion and control over the compartment and, thus, his constructive possession of the firearm and the contents of the compartment were established by facts showing his ability to exercise control over an area located directly in front of where he was sitting. The magnet that opened the hidden compartment was in Bocio's wallet in the center console, easily accessible to defendant. Notably, "[i]t is not necessary that the defendant ha[d] exclusive access to the area where the loaded firearm was discovered" to establish his or her constructive possession, which "'may be established through circumstantial evidence'" (People v Sloley,
Turning to defendant's challenge to the weight of the evidence, we must "view the evidence in a neutral light and determine first whether a different verdict would have been unreasonable and, if not, 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 Henry,
Further, defendant admitted that he had known Bocio for years and that, as a favor, he had driven a different vehicle to Buffalo on March 6, 2018, the weekend prior to this incident, purportedly to show that vehicle to a prospective buyer, but claimed not to have connected with the person. When defendant was stopped by police in the Capital District on that return trip, he was found to be driving with a suspended license and the vehicle was impounded; Bocio paid about $1,000 to have the vehicle towed back to the Bronx on March 8, 2018, with defendant present. Defendant admitted that Bocio had given him his iPhone [FN7] to use for GPS purposes on that trip, the same iPhone found in the vehicle when stopped by Mauro on March 15, 2018, and the forensic evidence demonstrated that defendant used that phone to arrange the return of the vehicle to Bocio the prior weekend. Defendant had provided the towing company with two phone numbers for himself, one of which he also provided to police during his interview and both of which were listed as contacts in the iPhone under a pseudonym very similar to defendant's name, which the People convincingly demonstrated was defendant; the flip-phone found in the vehicle also contained one of those phone numbers listed as a contact under that same pseudonym. Moreover, Bocio's iPhone, with which he had entrusted defendant on an out-of-town trip the week prior to this stop, contained text messages and pictures connecting Bocio to drug transactions and large quantities of drugs and cash, supporting the inference that defendant was aware that Bocio was engaged in drug activity.
Although defendant told police that his purpose in going with Bocio all the way to Buffalo on March 15, 2018 was to retrieve his driver's license being held by the towing company in the Capital District, this account was not credible particularly given the towing company owner's testimony that the company never held on to licenses when they towed vehicles. Further, the evidence was unrefuted that the drugs were analyzed and tested positive for the requisite aggregate weight of heroin (59.6 grams, over two ounces) and cocaine (181.1 grams, over six ounces), and the pills were identified as Alprazolam. Defendant's intent to sell, an element of the charges for criminal possession of a controlled substance in the third degree (see Penal Law § 220.16 [1]), was readily inferable from the State Police investigator's testimony that the heroin and cocaine were uncut and of a pure quality, and from the vast quantity of the drugs that the investigator estimated had a street value after being cut in the hundreds of thousands of dollars (see People v Wheeler,
Defendant further argues that Supreme Court erred in permitting the People to introduce evidence extracted from Bocio's iPhone pursuant to a search warrant. To the extent that defendant claims that the contents of the iPhone constituted improper Molineux evidence, this was not part of or addressed during the People's Molinuex proffer, and defendant did not make this argument during pretrial challenges to this evidence or at trial — when the scope and admissibility of this evidence were again addressed; thus, this claim is not preserved for our review (see People v Haynes,
Defendant also challenges the testimony regarding the content of the iPhone on hearsay and relevancy grounds. On direct examination of Mauro regarding the extracted contents of the iPhone, the People elicited testimony that was temporally limited to defendant's trip to Buffalo the week earlier, during which he admittedly used the iPhone (March 6 through 8, 2018), and from the day of this arrest (March 15, 2018). This was relevant to disputed material issues, including defendant's knowledge and intent, and the absence of mistake, and to establish his relationship with Bocio, their common scheme and plan and their communication just prior to this trip (see People v Leonard,
With regard to the admission of hearsay statements from the iPhone, including those attributed to Bocio, we agree with defendant that Supreme Court erred in admitting them under the coconspirator exception to the hearsay rule. Such evidence is admissible only where the People first make a prima facie case of conspiracy — that there was an agreement to commit a crime and an overt act — without recourse to the declarations of Bocio, which we find they did not do (see People v Caban,
Finally, defendant raises a litany of alleged errors by defense counsel that he contends deprived him of the effective assistance of counsel. To the extent that defendant's contentions concern matters outside of the record, such as whether counsel reviewed certain evidence or considered specific issues, they are more properly raised in the context of a CPL article 440 motion to vacate (see People v Schmidt,
Clark, J.P., Mulvey, Devine and Pritzker, JJ., concur.
ORDERED that the judgment is affirmed.
Footnote 1: Defendant was sentenced to time-served on the misdemeanor and violation convictions.
Footnote 2: This issue was again addressed just prior to jury selection, when the People made clear that they were aggregating the weights of the cocaine and heroin under count 1, in the context of defendant's unsuccessful challenge to the sufficiency of the evidence before the grand jury with regard to that count.
Footnote 3: "'Aggregate' weight refers to the weight of the substance which contains the drug, irrespective of the amount of the drug in the substance," whereas "'[p]ure' weight refers only to the actual amount of the drug itself, irrespective of whether it is included in another substance" (William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 220.00 at 24).
Footnote 4: The People's reliance upon the automobile exception to the Fourth Amendment's search warrant requirement to justify the search of the hidden compartment is misplaced, as the search of the vehicle here occurred prior to the arrest of defendant or Bocio, who were only arrested after the contraband was found in the hidden compartment (see People v Galak,
Footnote 5: After the People rested, defendant unsuccessfully moved to dismiss the charges based upon legal insufficiency of the evidence on this ground and then rested without submitting any direct evidence or testimony. Thus, when the People rested, it was at "the conclusion of all the evidence" (CPL 290.10 [1]) and defendant was not required to renew his motion to dismiss after he rested (cf. People v Kolupa,
Footnote 6: The automobile presumption does not apply to unlawful possession of marihuana (see People v Wallace,
Footnote 7: Although police were unable to obtain subscriber information for the iPhone, it was undisputed at trial that it belonged to Bocio.
Footnote 8: Defendant did not preserve his present claim that evidence regarding his trip to Buffalo the week before this arrest constituted improper Molineux evidence (see People Hayes,