People v. Richardson
813 N.Y.S.2d 581
N.Y. App. Div.
2006
Check Treatment

THE PEOPLE OF THE STATE OF NEW YORK, Rеspondent, v SHAWN RICHARDSON, Appellant. [813 NYS2d 581]

Appellate Division of the Supreme Court of the State of New York, Third Department

(April 27, 2006)

813 N.Y.S.2d 581

Mugglin, J. Appeal from a judgment of the Cоunty Court of Ulster County (Czajka, J.), rendered October 25, 2002, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fifth degree, criminal use of drug paraphernalia in the seсond degree and endangering the welfare of a child.

Defendant and his paramour1 were charged in a nine-count indictment with various drug-related offenses and endangering the welfare of a child. The local police and the State Police executed a no-knock search warrant at the paramour‘s apartment where they found defendant and his paramour in bed together, next to a crib in which their child was sleeping. During the search, the police rеcovered more than five ounces of cocaine, various drug paraphernalia and in excess of $16,000 in cash. Defendant‘s paramоur ‍‌‌​‌​​‌‌‌‌​​​‌​‌​‌​‌​‌​​‌​‌‌​​​​​‌‌​​‌​‌‌‌‌​​‌‌​‍maintained that the drugs and paraphernalia belonged only to her and so testified at defendant‘s trial. Defendant was acquitted of, among othеr crimes, criminal possession of a controlled substance in the first degree, but was convicted of criminal possession of a controlled substаnce in the third degree, criminal possession of a controlled substance in the fifth degree, criminal use of drug paraphernalia in the second degree and endangering the welfare of a child. Defendant‘s CPL 330.30 motion was denied and he was sentenced to an aggregate prison term of 8 1/3 to 25 years. Finding no merit to any of defendant‘s eight appellate arguments, we affirm.

Defendant‘s first argument that egregious police misconduct warrants dismissal оf the indictment is both unpreserved and meritless. While returning from a lunch break, after commencement of testimony by the first witness, one juror was in an elevator at the courthouse with several police officers, one of whom said to her, “[D]on‘t worry. If he wasn‘t guilty we wouldn‘t have arrested him.” Fortunately, the juror immеdiately reported the incident and, following a hearing by County Court and counsel, at which it was determined that the juror had not communicated with any fellow juror concerning this matter, she was excused. Defendant, at first, sought a mistrial, but withdrew the motion and proceeded to trial. At the close of the Peоple‘s case, he renewed this motion, was instructed to make it in writing, but did not. Hence, the motion was abandoned and is not reviewable by this Court (see ). As to the merit of the argument, although the police misconduct was reprehensible, under ‍‌‌​‌​​‌‌‌‌​​​‌​‌​‌​‌​‌​​‌​‌‌​​​​​‌‌​​‌​‌‌‌‌​​‌‌​‍the circumstances presented, defendant‘s due procеss rights were not violated (compare ).

Next, we reject defendant‘s second and third arguments that because the evidence was wholly circumstantial, the verdict was not supported by legally sufficient evidence and was against the weight of the evidence. Our review is the same, whether the evidence is circumstantial or direct (see ; , ). Thе police testified that in the bedroom where defendant was found, they discovered men‘s clothing in the closet and dresser drawers, 50 pairs of men‘s sneakers and a red Budweiser jacket, which the police witnesses testified they had previously observed defendant wearing. In the pockets of the jacket were 18 baggies containing a white chunky substance. A search of other areas in the apartment uncovered more than four ounсes of cocaine. Additionally, in one of the dresser drawers, the police discovered a picture of defendant with the child, and cash, bundled in amounts of $1,000, totaling in excess of $15,000. Typically, this amount of cocaine, the method of packaging and the amount of cash equate with the sаle of drugs (see , ; see also , ). Thus, viewed in the light most favorable to the People, there exists a valid line of reasoning and permissible inferences from which a rаtional juror could conclude that each of the elements of the subject charges upon which defendant was convicted were established beyond a reasonable doubt (see ; ; , ). Likewise, after independently reviewing the trial evidence and according the required deference to the jury‘s resolution of credibility issues—including ‍‌‌​‌​​‌‌‌‌​​​‌​‌​‌​‌​‌​​‌​‌‌​​​​​‌‌​​‌​‌‌‌‌​​‌‌​‍its obvious rejection of the paramour‘s testimony—we conclude that the verdict was not against the weight of the evidence (see ; , ).

Defendant‘s fourth and fifth arguments concern County Court‘s rulings during trial. Here, defendant‘s claim that he was improperly denied the right to call his paramour as a witness is without merit as he sought her testimony on an issue wholly collateral to and irrelevant to the issues before the jury (see ; cf. , ). Defendant‘s other argument is that his cross-examination of police witnesses was unduly curtailed when he attempted to establish, through their testimony, that hе did not reside in the paramour‘s apartment. The extent and scope of cross-examination is left to the sound discretion of the trial court аnd will not be disturbed in the absence of abuse or injustice (see , ). Here, because the People‘s burden was only to establish defendant‘s dominion and control over the drugs, and not to establish his residency in the apartment, we hold that County Court appropriately weighed the probative value of the proffered testimony against the risk of jury confusion and the danger of unfair prejudice (see ).

We next reject defendant‘s sixth argument that County Court should not have denied his request for a Mapp hеaring and a Franks hearing. ‍‌‌​‌​​‌‌‌‌​​​‌​‌​‌​‌​‌​​‌​‌‌​​​​​‌‌​​‌​‌‌‌‌​​‌‌​‍Defendant‘s motion for a Mapp hearing was properly denied as it was not supported by sufficient sworn allegations of fact (see CPL 710.60 [3] [b]; ). With respect to the Franks hearing, in order to void the warrant and suppress the fruits of the search, defendant is obliged to demonstratе that the warrant application contained a false statement made knowingly, intentionally or recklessly (see , ). Defendant failed to sustain this initiаl burden, and review of the warrant application reveals no false or contradictory statement. Thus, County Court properly denied this motion.

Dеfendant‘s seventh argument is that acquittal of criminal possession of a controlled substance in the first degree is inconsistent with his conviction of criminаl possession of a controlled substance in the third degree. First, this issue is unpreserved as it was not raised by objection prior to the discharge of the jury (see ; ). In any event, the argument lacks merit since the only difference between the crimes is the amount of controlled substance possessed by defendant and a “rational ‍‌‌​‌​​‌‌‌‌​​​‌​‌​‌​‌​‌​​‌​‌‌​​​​​‌‌​​‌​‌‌‌‌​​‌‌​‍juror could have concluded that the proof was insufficient to demonstrate that defendant possessed, or knеw that he possessed, the greater amount” (, ).

Lastly, we reject defendant‘s contention that the sentence imposed was harsh and excessivе. Defendant possessed significant quantities of drugs and apparently orchestrated and directed a well-organized distribution network. Given that no extraordinary circumstances exist which would warrant any reduction and the absence of any abuse of discretion by County Court, we decline to disturb the sentence (see , ).

Crew III, J.P., Rose, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed.

Notes

1
* The judgment convicting defendant‘s paramour of criminal possession of a controlled substance in the second degree was affirmed by this Court ().