Opinion
274 KA 11-02528
03-22-2013
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. SAMUEL D. MCCULLOUGH, DEFENDANT-APPELLANT.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (MARY-JEAN BOWMAN OF COUNSEL), FOR DEFENDANT-APPELLANT. SAMUEL D. MCCULLOUGH, DEFENDANT-APPELLANT PRO SE. MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF COUNSEL), FOR RESPONDENT.
PRESENT: , P.J., PERADOTTO, CARNI, LINDLEY, AND WHALEN, JJ.
Appeal from a judgment of the Niagara County Court (Matthew J. Murphy, III, J.), rendered November 21, 2011. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the fourth degree and unlawful possession of marihuana.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (MARY-JEAN BOWMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
SAMUEL D. MCCULLOUGH, DEFENDANT-APPELLANT PRO SE.
MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF COUNSEL), FOR RESPONDENT.
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence imposed for criminal possession of a controlled substance in the fourth degree and as modified the judgment is affirmed and the matter is remitted to Niagara County Court for resentencing on that count of the indictment in accordance with the following Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09 [1]) and unlawful possession of marihuana (§ 221.05). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we reject defendant's contention in his main brief that the verdict is against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495). Contrary to defendant's additional contention in his pro se supplemental brief, the evidence is legally sufficient to support the conviction (see generally id.). "When narcotics are found in open view in a room on private premises, every person in close proximity' to the drugs at the time of discovery is presumed by statute to have knowingly possessed them" (People v Daniels, 37 NY2d 624, 630-631; see § 220.25 [2]; People v Kims, 96 AD3d 1595, 1595-1596). Here, the police entered defendant's apartment and found defendant standing next to a table containing 49 bags of cocaine in plain view. The table also contained packaging materials and a scale, which indicated an intent to "package or otherwise prepare for sale such controlled substance" (§ 220.25[2]) and, after he was handcuffed, defendant stated, "[E]verything in here is mine. It's all mine." The police then recovered a bag of marihuana and a bag of cocaine from his pockets. Although a visitor to the apartment who was in the shower when law enforcement arrived testified that all of the cocaine in the apartment belonged to him and not to defendant, the People established that the drugs were being packaged in defendant's apartment and that the visitor had left the drugs in open view, under defendant's control, while he was in the shower.
Defendant further contends in his main brief that County Court erred in denying his motion to suppress his statements to the police. We reject that contention. Defendant's statements, i.e., "[E]verything in here is mine. It's all mine," were "spontaneous and not the product of interrogation" (People v Youngblood, 294 AD2d 954, 954, lv denied 98 NY2d 704; see People v Cobado, 16 AD3d 1114, 1114, lv denied 4 NY3d 885). Defendant failed to preserve for our review his contention in his pro se supplemental brief that the court erred in failing to hold a Darden hearing (see CPL 470.05 [2]). In any event, "in making the determination that probable cause existed for the issuance of the warrant authorizing the police to search the apartment, the court had before it the warrant application and the in-camera testimony or notes' of the issuing court, and thus a Darden hearing was not required" (People v Long, 100 AD3d 1343, 1345-1346). Defendant's contention in his pro se supplemental brief that he was denied his right of confrontation is likewise unpreserved for our review and without merit (see Kims, 96 AD3d at 1598-1599).
We reject the further contention of defendant in his pro se supplemental brief that he was denied effective assistance of counsel. Contrary to defendant's contention, defense counsel challenged the sufficiency of the search warrantand, as noted above, there was no need for a Darden hearing (see Long, 100 AD3d at 1345-1346). "[T]he evidence, the law and the circumstances of [this] case, viewed together and as of the time of representation, reveal that meaningful representation was provided" (People v Satterfield, 66 NY2d 796, 798-799).
We conclude, however, that the sentence imposed on the conviction of criminal possession of a controlled substance in the fourth degree is illegal. Defendant was sentenced, as a second felony offender, to a determinate term of four years of imprisonment and three years of postrelease supervision upon that conviction. Penal Law § 70.06 provides that, with certain exceptions not relevant here, "when the court has found, pursuant to the provisions of the criminal procedure law, that a person is a second felony offender the court must impose an indeterminate sentence of imprisonment" (§ 70.06 [2]). Thus, the determinate sentence imposed by the court is illegal. We therefore modify the judgment by vacating the sentence imposed on the conviction of criminal possession of a controlled substance in the fourth degree,and we remit the matter to County Court for resentencing on that count of the indictment in accordance with Penal Law § 70.06 (2) (see People v Cardillo, 111 AD2d 827, 827; see also People v Slaughter, 27 AD3d 1188, 1189, lv denied 7 NY3d 795).
Frances E. Cafarell
Clerk of the Court