People v. NicholPeople v. Nichol
In September 2010, members of the Albany County Sheriff‘s
Defendant was indicted for various crimes and, following a jury trial, convicted of two counts of criminal sale of a сontrolled substance in the third degree and one count of criminal possession of a controlled substance in the third degree. Supreme Court sentenced him as a second felony drug offender to consecutive prison terms of seven years on each of the criminal sale convictions, followed by three years of postrelease supervision, and a prison term of seven years with three years of postrelease supervision on the criminal possession charge, to be served concurrently with the other sentences. Defendant appeаls.
We reject defendant‘s assertion that Supreme Court should have granted his motion to suppress the evidence obtained in the November 2010 search of his residence. The applicаtion for the search warrant was supported by the affidavit of a sheriff‘s investigator describing three controlled heroin buys at defendant‘s residence that the investigator had arranged and monitored; no hearsay statements or information attributed to third parties were included. Where probable cause for a search warrant is based upon the personal knowledge and first-hаnd observations of the deponent, and not upon hearsay, the Aguilar-Spinelli test does not apply (see People v Taylor, 73 NY2d 683, 688 [1989]; People v Vanhoesen, 31 AD3d 805, 806 [2006]; People v Doyle, 222 AD2d 875, 875 [1995], lv denied 88 NY2d 878 [1996]; see generally Spinelli v United States, 393 US 410 [1969]; Aguilar v Texas, 378 US 108 [1964]). Defendant‘s further contention that the warrant did not include the hallway where the heroin was found is contradicted by its plain language, which directs a search of the first floor of defendant‘s residence, including “all rooms, basements, attics, garages, attached or unattached and the surrounding grounds.”
We further reject defеndant‘s contention that he was denied a fair trial and discouraged from testifying by Supreme Court‘s Sandoval and Molineux rulings. Before trial, the People sought permission to impeach defendant, should he choose to testify, with evidence of various previous convictions and bad acts. Supreme Court permitted full inquiry as to a 2006 grand larceny
Defendant argues that his criminal sale convictions are not supportеd by legally sufficient evidence that he knowingly and unlawfully sold heroin, and that his criminal possession conviction was not supported by legally sufficient evidence that he constructively possessed heroin or intended to sell it (see
As to the criminal sale convictions, the first controlled buy was arranged by phone by the CI, who was searched and provided with a body wire and buy money, and then—observed at all times by a detective and an investigator—walked to defendant‘s residence and spoke to him through a window, asking for heroin. As seen on a police videotape, defendant oрened the front door, stepped outside and looked up and down the street before admitting the CI and closing the door. Inside, according to the CI, defendant accepted the buy money, bent over near some bicycles in a hallway, and handed two bags of what proved to be heroin to the CI, warning him to watch out for police. The investigator testified that he listened to this exchange through the CI‘s body wire, but later discovered that the device had
As to the criminal possession conviction, a detective testified that he found eight glassine bags of heroin inside a man‘s shoe in а common hallway during the November 2010 search of defendant‘s residence. Defendant contends that the People failed to establish that he constructively possessed this heroin, as it was not found inside his apartment. However, constructive possession is proven by demonstrating that a defendant exercised dominion and control over the location where contraband was found, and exclusive access is not required (see
Finally, defendant claims that his sentence was harsh and excessive. Although the sentence imposed was greater than one offered to him before trial upon a rejected plea bargain, this does not prove that he was punished for asserting his right to trial where, as here, the record contains no evidence of retaliation or vindictiveness (see People v Massey, 45 AD3d 1044, 1048 [2007], lv denied 9 NY3d 1036 [2008]). Considering the pattern of drug-related activity reflected in defendant‘s current convictions and his lengthy prior criminal history, we find no abuse of discretion nor any extraordinary circumstances warranting a reduction of the sentence in the interest of justice (see People v Herring, 74 AD3d 1579, 1580 [2010]; People v McDonald, 43 AD3d 1207 [2007], lv denied 10 NY3d 867 [2008]).
Peters, P.J., Stein, Egan Jr. and Clark, JJ., concur. Ordered that the judgment is affirmed.