The People, Respondent,v.Roosevelt Jennings, Appellant.BriefN.Y.December 5, 2013 To be argued by: MARIE JOHN-DRIGO (10 Minutes) SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: SECOND, ELEVENTH, AND THIRTEENTH JUDICIAL DISTRICTS THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ROOSEVELT JENNINGS, Defendant-Appellant. Appellate Term Case Number 2009-144 KCR Kings County Docket Number 2009KN046172 RESPONDENT’S BRIEF LEONARD JOBLOVE RHEA A. GROB MARIE JOHN-DRIGO Assistant District Attorneys of Counsel March 31, 2011 TABLE OF CONTENTS Page PRELIMINARY STATEMENT ........................................... 1 STATEMENT OF FACTS .............................................. 3 Introduction ............................................... 3 The Accusatory Instrument .................................. 3 The Trial .................................................. 5 The People’s Case ..................................... 5 Defendant’s Case ...................................... 7 The Verdict and Sentence ................................... 9 POINT I DEFENDANT’S CHALLENGE TO THE SUFFICIENCY OF THE INFORMATION IS UNPRESERVED. IN ANY EVENT, THE INFORMATION WAS FACIALLY SUFFICIENT BECAUSE IT CONTAINED NON-HEARSAY FACTUAL ALLEGATIONS THAT SUPPORTED EVERY ELEMENT OF THE CRIME CHARGED. ............. 10 POINT II THE CONVICTION WAS NOT AGAINST THE WEIGHT OF THE EVIDENCE... ............................................... 23 CONCLUSION FOR THE ABOVE STATED REASONS, DEFENDANT’S JUDGMENT OF CONVICTION SHOULD BE AFFIRMED. ......................... 32 2 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: SECOND, ELEVENTH, AND THIRTEENTH JUDICIAL DISTRICTS THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ROOSEVELT JENNINGS, Defendant-Appellant. Appellate Term Case Number 2009-144 KCR Kings County Docket Number 2009KN046172 RESPONDENT’S BRIEF PRELIMINARY STATEMENT Defendant Roosevelt Jennings, appeals from a judgment of the Criminal Term, Kings County, rendered on July 13, 2009, convicting him, after a bench trial, of Attempted Criminal Possession of a Controlled Substance in the Seventh Degree (P.L. §§ 110/220.30). Defendant was sentenced to 30 days imprisonment, and he has completed serving his sentence (Hong, J., at trial and sentence). There were no co-defendants at trial. 3 STATEMENT OF FACTS Introduction On June 11, 2009, at approximately 2:36 p.m., in the vicinity of 1430 Bergen Street, in Brooklyn, Police Officer Lenita Harrison observed defendant drop a crack pipe containing crack-cocaine residue to the ground. For this crime, defendant was charged by Kings County Docket Number 2009KN046172 with Criminal Possession of a Controlled Substance in the Seventh Degree (P.L. § 220.03). The Accusatory Instrument On June 12, 2009, the People filed an accusatory instrument against defendant in the Criminal Court of the City of New York, Kings County, under Kings County Docket Number 2009KN046172. In the accusatory instrument, Police Officer Tammy Deas stated that she was informed by Police Officer Lenita Harrison that on or about June 11, 2009, at approximately 2:30 p.m., at 1430 Bergen Street, defendant committed the offense of Criminal Possession of a Controlled Substance in the Seventh Degree, in violation of P.L. § 220.03, in that defendant did: Knowingly and unlawfully possess a controlled substance. See Accusatory Instrument in Court File. The factual part of the accusatory instrument stated, in its entirety: The deponent is informed by the sworn statement of Police Officer Lenita Harrison, shield number 26439 that, at the above time 4 and place, the informant observed the defendant in possession of a quantity of crack cocaine residue which informant recovered from the ground where informant observed defendant drop it. The deponent is informed by the sworn statement of informant that informant has had professional training as a police officer in the identification of crack cocaine residue, has previously made arrests for the criminal possession of crack cocaine residue, has previously seized crack cocaine residue that was determined to be such by the Police Department Laboratory and the crack cocaine residue in this case possesses the same physical characteristics as the previously chemically identified crack cocaine residue and the glass pipe used to package the crack cocaine residue in this case is a commonly used method of packaging crack cocaine residue. Based upon the foregoing, in informant’s opinion, the substance in this case is crack cocaine residue. See Accusatory Instrument in Court File. On that same date, the People filed a supporting deposition, signed by Police Officer Harrison, which reiterated the facts as stated in the accusatory instrument. See Supporting Deposition in Court File. On July 13, 2009, the People reduced the charges to Attempted Criminal Possession of a Controlled Substance in the Seventh Degree (Hong, J., Decision and Order, dated June 30, 2010 in Court File). 5 The Trial The People’s Case On June 11, 2009, at approximately 2:36 p.m., Police Officer LENITA HARRISON was the passenger in a marked police vehicle in which Police Officer Chen was the driver (Harrison: 10-11, 19- 20). 1 Both officers were in uniform (Harrison: 10, 31). The officers were traveling slowly westbound on Bergen Street in the vicinity of 1430 Bergen Street, in Brooklyn, an area known to Officer Harrison to be a drug-prone location (Harrison: 11-12, 21). The officers had just passed Troy Avenue when Officer Harrison observed defendant about nine feet away, walking down the stairwell of 1430 Bergen Street (Harrison: 11-12, 21). 2 The police car was moving slowly, it was a clear, but cloudy day, and there was nothing and no one obstructing the officer’s view (Harrison: 12, 20, 37). While defendant did not try to walk or run away, and did not turn away, defendant acted “furtively” upon seeing the police car (Harrison: 22-23). Officer Harrison saw defendant open his hand and she observed a glass pipe fall from 1 Unless otherwise indicated, numbers in parentheses refer to the pages of the trial transcript. Names in parentheses preceding page numbers refer to the witness whose testimony is cited. 2 Estimating the distance of the sidewalk, and the lengths of cars in photographs of the scene taken sometime after defendant’s arrest, defendant suggested that the distance between defendant and Officer Harrison could have been up to fifty feet, which Officer Harrison testified was possible (Harrison: 29-31). 6 defendant’s hand to the ground (Harrison: 13, 21, 23, 35). Defendant’s action appeared suspicious to the officer because this was a drug prone location and the officer had seen this type of action before (Harrison: 23). Defendant made eye contact with Officer Harrison just before dropping the glass pipe (Harrison: 21). 3 The officers stopped their car, exited and proceeded to stop defendant (Harrison: 13, 31). Defendant looked a little apprehensive as the officers approached (Harrison: 23). Defendant did not run or walk away as the officers approached, and he made no effort to kick the pipe away (Harrison: 32). Officer Harrison retrieved the glass pipe from the ground a few inches away from where defendant was standing. There was nothing else on the ground in the area where she recovered the pipe (Harrison: 13-14, 33). The glass pipe was not broken or chipped (Harrison: 34). In the course of her career as a police officer, Officer Harrison had arrested approximately ten persons for possessing crack pipes, and based on her experience, Officer Harrison believed that the object that she had retrieved from the ground next to defendant was a crack pipe containing crack cocaine 3 Officer Harrison identified defendant in court (Harrison: 12). 7 residue (Harrison: 14). 4 Officer Harrison vouchered the crack pipe and placed it an open narcotics envelope (Harrison: 14-15, 35-36). 5 Officer Chen placed defendant in handcuffs (Harrison: 13, 32). WAI SZE AU, a chemist for the N.Y.P.D., tested the contents of the glass pipe recovered by Police Officer Harrison on June 11, 2009, and determined that the residue in the pipe was cocaine (Au: 47-60). Defendant’s Case Defendant, ROOSEVELT JENNINGS, admitted that he had been convicted on July 16, 1992, upon a plea of guilty, to attempted robbery in the second degree (Jennings: 62). Defendant claimed that on the afternoon of June 11, 2009, defendant was standing in front of the Albany Houses at Bergen and Troy Streets, where defendant claimed, he waited for his lifelong friend, Basir Mohamed because they “usually hang out together” (Jennings: 62- 63, 69, 71). Defendant testified that he and his friend Basir Mohamed were going to watch a playoff basketball game between the Lakers and the Orlando Magic (Jennings: 71). Defendant acknowledged that Basir Mohamed did not live in the building, but claimed that Mohamed’s wife’s sister lived there, and that 4 While Officer Harrison had made approximately 60 arrests, this was her first time testifying at trial (Harrison: 20). 5 The crack pipe was admitted into evidence as People’s Exhibit 1 (Harrison: 16-18; AU: 52). 8 Mohamed had told defendant to meet him there (Jennings: 63, 69- 70). According to defendant, at about 2:30 p.m., he had just walked up the block and up the ramp to the building to see if Mohamed was in front of the building, and had turned away from the building because Mohammed was not there, when he observed a police cruiser pull up on the side of the building (Jennings: 64- 65, 70-72). Defendant claimed that the police car stopped and the driver of the car (a male police officer in uniform) got out of the car (Jennings: 66). Defendant claimed that without saying anything, the male officer beckoned with his hand for defendant to come over and when defendant approached the officer, he was placed under arrest (Jennings: 67-68, 73-74). Defendant claimed that he thought that he was being arrested for trespassing, because the officer asked him questions about the building. Defendant testified that he only learned that he was being charged with possession of a controlled substance at his arraignment the next day (Jennings: 68-69, 74). Defendant claimed that there was a police officer seated in the passenger seat of the vehicle, and while he could not determine the gender of that officer from where he stood, he later learned that that officer was female (Jennings: 67). Defendant also claimed that he did not have any interaction with the female police officer until he arrived at the police station (Jennings: 75). 9 Defendant claimed that he had seen debris on the ground as he approached the curb where the male police officer was standing, but he could not distinguish what the debris was (Jennings: 76). Defendant denied that he had a crack pipe in his hand that day, that he dropped a crack pipe on the ground that day, or that he was in possession of a controlled substance that day (Jennings: 69). Defendant acknowledged that he never had any problems with either of these police officers in the past, and that he had never seen either of the two officers before that day (Jennings: 75). Defendant testified that he was not doing anything to draw attention to himself, and he averred that the officers had no reason to bother him (Jennings: 75). The Verdict and Sentence On July 13, 2009, the trial court convicted defendant of Attempted Criminal Possession of a Controlled Substance in the Seventh Degree, and immediately sentenced defendant to thirty days of incarceration and a mandatory surcharge (100-01) (Hong, J., at trial and sentencing). 10 POINT I DEFENDANT’S CHALLENGE TO THE SUFFICIENCY OF THE INFORMATION IS UNPRESERVED. IN ANY EVENT, THE INFORMATION WAS FACIALLY SUFFICIENT BECAUSE IT CONTAINED NON-HEARSAY FACTUAL ALLEGATIONS THAT SUPPORTED EVERY ELEMENT OF THE CRIME CHARGED. Defendant seeks to overturn his judgment of conviction by challenging the facial sufficiency of the accusatory instrument charging him with Attempted Criminal Possession of a Controlled Substance in the Seventh Degree, of which he was convicted. Because defendant failed to make a pre-trial motion to dismiss the information, his challenge to the sufficiency of the information is not preserved for appellate review, and is also forfeited. In any event, because the information did allege facts supporting defendant’s commission of every element of the crime charged, his claim is meritless. Defendant claims that the information in the instant case was facially insufficient because it was not supported by a laboratory analysis report (Defendant’s Brief at 10-11). However, defendant never made a pre-trial motion to dismiss the information on facial sufficiency or any other grounds. Therefore, defendant’s challenge to the sufficiency of the information is not preserved for appellate review. People v. Casey, 95 N.Y.2d 354 at 362-63 (2000); In re Gerald R.M., 12 A.D.3d 1192, 1193-94 (4th Dep’t 2004); People v. Campbell, 141 Misc. 2d 470, 477 (N.Y. Crim. Ct. 1988). 11 Where an accusatory instrument alleges that a defendant committed every element of the crime charged, a mere hearsay pleading violation of C.P.L. § 100.40(1)(c) can be waived and thus is not a fatal jurisdictional defect. People v. Casey, 95 N.Y.2d at 362-63. Therefore, an objection to an alleged hearsay defect must be made by pre-trial motion, or else it is deemed waived for appellate review. People v. Casey, 95 N.Y.2d at 362- 63. The Criminal Procedure Law provides that a motion to dismiss a misdemeanor complaint or an information on the ground of facial insufficiency should be made within specified time limits, and, even upon a showing of good cause, no later than sentencing. See C.P.L. §§ 170.30(1)(a), (2), 170.35(1)(a), 255.20; People v. Key, 45 N.Y.2d 111, 116 (1978). A failure to comply with those time limits ordinarily results in forfeiture of a defendant’s claim. Indeed, in People v. Iannone, 45 N.Y.2d 589 (1978), the Court of Appeals, citing C.P.L. §§ 210.20(2) and 255.20 (specifying timeliness requirements for motions to dismiss indictments) rejected the defendants’ contention that an insufficiency in the factual allegations of an indictment is a jurisdictional defect that may not be waived and determined that such a claim is not reviewable absent an objection in the trial court. Id. at 600. See also People v. Davidson, 98 N.Y.2d 738, 739 (2002) (“[t]he time restrictions fixed by CPL 255.20 are not casual;” “[p]lainly the Legislature intended that a potentially 12 dispositive motion that could be made by a defendant at the outset of a prosecution should not be delayed until after an unfavorable verdict”); People v. Lawrence, 64 N.Y.2d 200 (1984) (failure to make timely motion to dismiss indictment on speedy trial grounds results in waiver of claim); People v. Key, 45 N.Y.2d at 116-17 (claim that information was facially insufficient was waived by defendant’s failure to make timely motion to dismiss on that ground). In addition, the principles that define the narrow circumstances in which an exception is made to the preservation rule support the conclusion that defendant’s claim in this case is waivable. In People v. Patterson, 39 N.Y.2d 288 (1976), aff’d, 432 U.S. 197 (1977), the Court of Appeals explained: Strict adherence to the requirement that complaint be made in time to permit a correction serves a legitimate State purpose. A defendant cannot be permitted to sit idly by while error is committed, thereby allow the error to pass into the record uncured, and yet claim the error on appeal. Were the rule otherwise, the State’s fundamental interest in enforcing its criminal law could be frustrated by delay and waste of time and resources invited by a defendant. Patterson, 39 N.Y.2d at 295 (citation omitted). In People v. Casey, relying on these principles of preservation, the Court of Appeals held that C.P.L. § 170.35(1)(a), which allows for a defective information to be cured by amendment rather than being dismissed, “militates against treating a hearsay allegation defect in an information as non-waivable.” People v. Casey, 95 N.Y.2d at 367. See also 13 People v. Connor, 63 N.Y.2d 11, 13-15 (1984) (defendant impliedly waived right to be prosecuted by information when he proceeded to trial on misdemeanor complaint without objection). In the instant case, the alleged defect, which related to the facial sufficiency of the accusatory instrument was readily curable. The alleged defect in the accusatory instrument was a claim that the People had failed to support the accusatory instrument with a positive laboratory analysis report. The crack pipe was tested by the police laboratory and was found to contain crack cocaine residue. Had defendant raised the issue in the trial court, the People could readily have remedied the alleged defect by filing the laboratory analysis report attesting to the positive result. See C.P.L. § 100.40(4)(b); People v. Nuncio, 78 N.Y.2d 102 (1991) (People are authorized to file new information following dismissal of information for facial insufficiency). Accordingly, because defendant failed to object to this alleged defect in the trial court, when the alleged defect could have been remedied, defendant forfeited his right to raise this claim on appeal. See N.Y. Const. Art. VI, § 3(a); C.P.L. § 470.05(2). In any event, defendant’s claim is meritless because the information filed by the People charging defendant with Criminal Possession of a Controlled Substance in the Seventh Degree was facially sufficient. Defendant does not dispute that the information contains sufficient non-hearsay factual allegations to establish that defendant possessed a crack pipe containing a 14 substance. Defendant, however, claims that the allegation is unsupported by a laboratory analysis establishing that the substance is crack cocaine residue. While defendant acknowledges that the case of People v. Kalin, 12 N.Y.3d 225 (2009) established that an accusatory instrument could be facially sufficient without a supporting laboratory analysis report, defendant attempts to distinguish Kalin from the present case by asserting that the Kalin ruling does not apply to crack cocaine residue (Defendant’s Brief at 10-11). A valid and sufficient accusatory instrument is a non- waivable jurisdictional prerequisite to a criminal prosecution. People v. Case, 42 N.Y.2d 98, 99 (1977). Every accusatory instrument must contain two elements: 1) an accusatory portion designating the offense charged, and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. C.P.L. §§ 100.15(1), (2), and (3), and 100.40(4)(b); see People v. Kalin, 12 N.Y.3d 225, 228 (2009); People v. Dumas, 68 N.Y.2d 729 (1986). Where an accusatory instrument is an information, the factual allegations in the accusatory instrument must also establish every element of the offense. C.P.L. §§ 100.40(1)(c), 100.15(3); People v. Case, 42 N.Y.2d at 99-100. 15 In assessing whether the factual allegations in an information satisfy this requirement, a reviewing court should give the factual allegations “a fair and not overly restrictive or technical reading.” People v. Casey, 95 N.Y.2d 354, 360 (2000); see People v. Alexander, 4 Misc. 3d 133A (App. Term 2d Dep’t 2004). The factual allegations should be deemed sufficient “so long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense.” People v. Casey, 95 N.Y.2d at 360. To have a facially sufficient information for attempted criminal possession of a controlled substance, the People need not support that allegation with a laboratory analysis report, and the Court of Appeals makes no distinction between residue and any other type of cocaine. See People v. Kalin, 12 N.Y.3d at 230. See also People v. Mizell, 72 N.Y.2d 651, 654 (1988) (cocaine residue -- though unusable -- is nonetheless a controlled substance that can give rise to criminal liability for possession of a controlled substance in the seventh degree); People v. Ketteles, 62 A.D.3d 902, 903 (2d Dep’t 2009) (a crack pipe is a telltale sign of narcotics possession); People v. Williams, 266 A.D.2d 97 (1st Dep’t 1999) (the cocaine residue recovered from defendant, whether usable or not, gave rise to criminal liability for seventh-degree criminal possession of a controlled substance); People v Morgan, 24 Misc. 3d 1250A (Sup. 16 Ct. Kings Co. 2009) (defendant’s contention that residue alone is insufficient to qualify a defendant to be in knowing possession of a controlled substance is without merit). See also People v. Martinez, 176 A.D.2d 761, 762 (2d Dep’t 1991) (it is well settled that knowledge may be proven circumstantially and that, generally, possession may give rise to an inference that the possessor knows what he or she possesses). Defendant’s position would require the prosecution to plead its case with the level of specificity far in excess of what is required by Casey and Kalin, and would place an unreasonably heavy burden on the People. Defendant effectively demands that this Court give the accusatory instrument the very sort of “overly restrictive or technical reading” that the Court of Appeals has explicitly stated is not required of misdemeanor informations. See Casey, 95 N.Y.2d at 360. Pursuant to Criminal Procedure Law § 100.15(3), the factual part of a misdemeanor complaint “must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges.” Criminal Procedure Law § 100.40(4) states that a misdemeanor complaint, or a count thereof, is facially sufficient when: (a) It substantially conforms to the requirements prescribed in section 100.15; and (b) The allegations of the factual part of such accusatory instrument and/or any supporting depositions which may accompany it, provide reasonable cause to 17 believe that the defendant committed the offense charged in the accusatory part of such instrument. “‘Reasonable cause to believe that a person has committed an offense’ exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. . . . such apparently reliable evidence may include or consist of hearsay.” C.P.L. § 70.10(2). “Reasonable cause will, of course, vary according to the circumstances and exigencies of each particular case and as a consequence a ‘tight, inclusive definition is neither necessary nor desirable.’” Smith v. County of Nassau, 34 N.Y.2d 18, 23 (1974) (quoting People v. Coffey, 12 N.Y.2d 443, 451 [1963]). Defendant, in this case, had ample notice of the particular crime that he was accused of committing, and the allegations contained in the accusatory instrument and the supporting deposition were sufficient to allow defendant to prepare a defense and to invoke the Double Jeopardy Clause in a potential future prosecution. See People v. Kalin, 12 N.Y.3d 225, 230 (2009) “‘[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly 18 restrictive or technical reading’”; People v. Casey, 95 N.Y.2d at 360 (information must provide the accused with “notice sufficient to prepare a defense” and “to prevent a defendant from being tried twice for the same offense”); People v. Hamm, 9 N.Y.2d 5, 11 (1961). Further, the assertions that the officer had professional training as a police officer in the identification of crack cocaine residue, had previously made arrests for the criminal possession of crack cocaine residue, had previously seized crack cocaine residue that was determined to be such by the Police Department Laboratory, and that the crack cocaine residue in this case possessed the same physical characteristics as the previously chemically identified crack cocaine residue, and that the glass pipe used to package the crack cocaine residue in this case is a commonly used method of packaging crack cocaine residue, and that based upon these factors, it was the officer’s opinion that the substance in this case was crack cocaine residue, were enough to inform defendant that the substance possessed by defendant was crack cocaine. People v. Kalin, 12 N.Y.3d at 231. Contrary to defendant’s assertions, no specific minimum factual allegations specific to the facts of the Kalin case, including the fact that both heroin and marijuana were found in a closed compartment not open to public view, were “essential to finding a prima facie case that the particular substances were 19 actually heroin and marijuana” (Defendant’s Brief at 12). Indeed, the Kalin Court specifically rejected such a finding in noting: In our view, the pleading standards of the Criminal Procedure Law would be extended beyond what the Legislature intended if we were to require the recitation of a mandatory catechism in an information that otherwise adequately identifies the particular drug, alleges that the accused possessed that illegal substance, states the officer's familiarity with and training regarding the identification of the drug, provides some information as to why the officer concluded that the substance was a particular type of illegal drug, and supplies sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy. To the extent Jargon S. suggests otherwise, we are modifying that portion of the holding. People v. Kalin, 12 N.Y.3d at 232. Therefore, Police Officer Harrison’s statements in the accusatory instrument and the supporting deposition about her training and experience in identifying crack cocaine residue clearly met the Court’s requisite standard for facial sufficiency. See People v. Mack, 29 Misc. 3d 140A (App. Term 1st Dep’t 2010) (factual allegations in misdemeanor complaint sufficient where police officer “recovered a pipe containing crack/cocaine residue” from defendant’s left hand and officer believed that substance to be crack/cocaine “based upon his professional training as a police officer in the identification of drugs and his prior experience as a police officer in drug arrests”). 20 Defendant also argues, incorrectly, that Kalin refers only to drugs to be used or sold (Defendant’s Brief at 12). In fact, the Kalin decision makes no such distinction. Defendant appears to argue that the factual allegations in the present case would not satisfy Kalin and that, a laboratory analysis is even more necessary in the present case, because the residue in this case was a drug that had already been used, and that residue looks the same whether or not it contains cocaine (Defendant’s Brief at 13). Defendant makes this claim without any support for it in the record. Kalin makes no mention of a minimum amount of drugs necessary in order to satisfy the factual allegations in a complaint, nor does it distinguish between used or unused drugs. Further, defendant’s assertion that the officer’s training in packaging would only have been meaningful in the context of drugs to be sold and could not apply to a crack pipe (Defendant’s Brief at 13), is also without merit. In so arguing, defendant ignores the fact that packaging can also refer to the container in which the drugs are housed, and as such a crack pipe is certainly packaging, in this context. Indeed, one of the “packagings” in the Kalin case was a marijuana pipe and the court found that that vessel further supported the officer’s belief that he had found marijuana. Kalin, 12 N.Y.3d at 231. See also People v. Pearson, 78 A.D.3d 445 (1st Dep’t 2010) (supporting deposition stating that officer observed defendant remove condom from his waistband containing eight glassines of a beige powdery 21 substance, which the officer concluded to be heroin, based on his training and experience in the recognition of narcotics and its packaging was sufficient despite the lack of a laboratory report or a field test); People v. Mack, 29 Misc. 3d 140A (App. Term 1st Dep’t 2010). This Court “may consider only those factual allegations contained within the four corners of the instrument and any supporting depositions.” See People v. Santulli, 2010 NY Slip Op 20329, 2010 N.Y. Misc. LEXIS 3835, at *8, 4 (App. Term 2d Dep’t 2010) (“facial sufficiency of an accusatory instrument must be evaluated in light of what the instrument alleges within its ‘four corners’”). See also In re Edward B., 80 N.Y.2d 458, 461, 463 (1992); People v. Alejandro, 70 N.Y.2d 133 (1987). Finally, defendant’s assertion that criminalist Wai Sze Au testified that only 40 percent of samples she tested in her career contained no narcotic drugs whatsoever, to support defendant’s argument that a laboratory request was necessary (Defendant’s Brief at 3-4), is not supported by the record. Au’s testimony related generally to how many analyses of narcotics she had performed during her career (Au: 46). Au was never asked and did not testify about how many analyses she had performed of residue in crack pipes as opposed to other narcotics, and whether those analyses had yielded the same result (Au: 45-60). In sum, defendant failed to preserve his challenge to the facial sufficiency of the accusatory instrument by failing to 22 move to dismiss on those grounds prior to trial. The information filed by the People in the instant case contained factual allegations showing defendant’s commission of every element of the charge of Attempted Criminal Possession of a Controlled Substance in the Seventh Degree, and those allegations were specific enough to allow defendant to prepare a defense and to prevent defendant from being prosecuted twice for the same crime. Accordingly, defendant’s conviction should be affirmed. 23 POINT II THE CONVICTION WAS NOT AGAINST THE WEIGHT OF THE EVIDENCE. The defendant’s conviction should be affirmed on appeal because the jury’s verdict was amply supported by the weight of the evidence. See C.P.L. § 470.15(5). 6 When the Court engages in a weight of the evidence analysis, it must first determine whether an acquittal would not have been unreasonable. See People v. Danielson, 9 N.Y.3d 342, 348 (2007); People v. Romero, 7 N.Y.3d 633, 643 (2006). Then, in analyzing the weight of the evidence, the Court weighs the conflicting testimony, reviews any rational inferences that may be drawn from the evidence, evaluates the strength of such conclusions, and decides whether the court was justified in finding defendant guilty beyond a reasonable doubt. See Danielson, 9 N.Y.3d at 348; People v. Bleakley, 69 N.Y.2d 490, 495 (1987). It is well-established that witness credibility is primarily a question for the fact-finder such that an appellate court should not substitute itself for the jury. See Romero, 7 N.Y.3d at 644; People v. Finney, 181 A.D.2d 789, 789 (2d Dep’t 1992). Thus, the Court accords great deference to the fact finder’s opportunity to view witnesses, hear testimony, and observe demeanor. See Romero, 7 N.Y.3d at 645 (observing that many 6 Defendant does not challenge the legal sufficiency of the evidence on appeal. 24 facets of witness credibility are not necessarily captured in a printed transcript); People v. Browne, 67 A.D.3d 697, 697-98 (2d Dep’t 2009); People v. Kline, 49 A.D.3d 665, 665 (2d Dep’t 2008). People v. Palompelli, 296 A.D.2d 557, 558 (2d Dep’t 2002). The determination of the trier of fact should receive great deference on appeal and should not be disturbed unless clearly unsupported by the record. See People v. Romero, 7 N.Y.3d 633, 644–45 (2006); People v. Bleakley, 69 N.Y.2d 490, 495 (1987); People v. Bardales, 300 A.D.2d 596, 597 (2d Dep’t 2002). Nevertheless, “[i]f based on all the credible evidence a different finding would not have been unreasonable, then the appellate court must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony,” People v. Bleakley, 69 N.Y.2d at 495 (internal quotation marks omitted); People v. Bardales, 300 A.D.2d 596, 597 (2d Dep’t 2002); People v. Williams, 289 A.D.2d 600, 601 (2d Dep’t 2001). The weight of the evidence in this case supports the verdict. The People presented the testimony of two witnesses, Police Officer Harrison, who observed defendant in possession of the crack pipe, and the criminalist who conducted the tests on the pipe’s residue. The police officer testified that on a clear but cloudy afternoon on June 11, 2009, at around 2:30 p.m., with nothing obstructing her view, she observed defendant drop the 25 crack pipe to the ground. Officer Harrison recovered the pipe and it contained crack cocaine residue. Officer Harrison’s partner, Police Officer Chen handcuffed defendant. Defendant testified on his own behalf, and claimed, incredibly, that Officer Harrison was not involved in any way in his arrest and that he only interacted with Officer Harrison at the police station. In fact, according to defendant, Officer Harrison remained obscured inside the police car, so that he could not even determine her gender, while her partner, Officer Chen, got out of the car, beckoned defendant to come over, and after asking defendant some questions about the building, placed defendant under arrest. Defendant claimed that he was waiting for a friend at the location who did not even live there, when he saw the police car. Defendant claimed that he thought that he was being arrested for trespassing, and did not learn that he was being charged with possessing the crack pipe until his arraignment the next day. Although defendant at trial denied any contact whatsoever with Officer Harrison, defendant, on appeal, now questions the officer’s credibility, arguing that the officer “simply could not have seen what she claimed to see” (Defendant’s Brief at 4). Defendant suggests that Police Officer Harrison’s testimony was incredible and that she could not possibly have seen the crack pipe from where she sat in the police car, and when she testified that she was looking at defendant’s hands and eyes. (Defendant’s 26 Brief at 4, 16). Officer Harrison testified on direct examination that defendant was nine feet away when she observed him drop glass pipe from his hand. On cross-examination, defense counsel suggested that the distance between the officer and defendant was “at least fifty feet,” (Harrison: 29-30). 7 While Officer Harrison acknowledged that she gave an approximation of the distance, the trier of fact viewed the photographs put into evidence by defendant at trial, with the markings made by the witnesses referring to their positions. Thus, it was for the trier of fact to determine the credibility of the witnesses and the weight to be given to the testimony of the witnesses. See People v. Romero, 7 N.Y.3d 633 (2006); People v. Scott, 65 A.D.3d 707, 707 (2d Dep’t 2009) (where different versions of events were supplied by fact witnesses deference accorded to jury’s resolution of such credibility issues). Indeed, the mere presence of minor inconsistencies in the testimony does not render a witness’s testimony unreliable. See People v. Scipio, 61 A.D.3d 899, 899 (2d Dep’t 2009); People v. Sepulveda, 59 A.D.3d 641, 642 (2d Dep’t 2009); People v. Atkins, 241 A.D.2d 459, 460 (2d Dep’t 1997). Police Officer Harrison’s testimony about the distance was 7 Defendant in his brief on appeal mistakenly misconstrues the colloquy of counsel’s suggestion regarding the distance between defendant and the police officer (Harrison: 29-31). 27 corroborated in some measure by defendant who acknowledged that he was able to see the police officer seated in the front passenger seat of the police car. Furthermore, regardless of the distance between the officer and defendant, Officer Harrison’s testimony that she saw defendant open his hand and let the glass pipe fall from defendant’s hand onto the ground was unequivocal, and nothing in the record contradicted her testimony about her ability to see as she testified. Defendant’s additional assertion that the likelihood of the officer seeing defendant drop the pipe was “virtually non- existent” because the pipe was “glass and translucent” and only “half an inch long” (Defendant’s Brief at 16) is simply unsupported by the record. The evidence at trial established that the glass crack pipe was approximately “a half inch wide” and “small enough to fit in [defendant’s] closed hand” or “pocket” (Harrison: 24, emphasis added). However, the record is devoid of any testimony regarding the length of the glass pipe or whether it was translucent. The crack pipe was admitted into evidence, thereby allowing the fact finder to make its own determination about whether or not the crack pipe was sizeable enough to be visible to the officer as defendant dropped it. Clearly, having viewed the evidence, the fact finder resolved this issue in favor of the prosecution, and this determination should not be disturbed as it is not contradicted by the record. See People v. Romero, 7 N.Y.3d 633 (2006); People v. Lynch, 63 28 A.D.3d 959 (2d Dep’t 2009); People v. Glenn, 53 A.D.3d 622 (2d Dep’t 2008); People v. Palompelli, 296 A.D.2d 557, 558 (2d Dep’t 2002). Defendant also claims that Officer Harrison “certainly could not see” defendant looking at her, and at the same time see defendant drop the glass pipe from his hand “unless he was wa[i]ving the pipe in front of his face” (Defendant’s Brief at 14, 16). First, Officer Harrison specifically testified that after defendant made eye contact with her, she saw him drop the pipe to the ground (Harrison: 21). Officer Harrison clarified that when she stated that she made eye contact with defendant she meant that defendant looked in her direction (Harrison: 21). Defendant argues that “it is difficult to accept that defendant would have a cold glass pipe in his hand and would drop it in front of the police” (Defendant’s Brief at 16). However, more than likely, upon seeing the police car, defendant sought to divest himself of the pipe before the police officer approached him, thinking that perhaps the officers would not notice him discard the pipe if he did so discreetly. Finally, there is no evidence to support defendant’s contention that he was arrested only because he was “a young black man [was] standing in front of a building in a drug prone area” (Defendant’s Brief at 16). While it is correct that defendant was arrested in a drug prone area which the officers were patrolling because of that very fact, the evidence at trial 29 clearly established that the officer saw defendant drop the glass pipe and the officer immediately retrieved the pipe a few inches from where defendant was standing. Indeed, there is no credible reason why these two police officers who did not know defendant, and neither of whom defendant knew, would engage in a racially motivated conspiracy to frame defendant for this offense. See People v James, 12 A.D.3d 617 (2d Dep’t 2005) (police officer’s testimony was not incredible as a matter of law). Defendant argues that in conducting a weight of the evidence review, this Court should consider that an acquittal in this case “would certainly not have been unreasonable” (Defendant’s Brief at 15). On the contrary, an acquittal in this instance would have been unreasonable, given the incredibility of defendant’s testimony when weighed against the credible testimony of Officer Harrison. Moreover, in People v. Danielson 9 N.Y.3d 342 (2007), the Court affirmed that, “court[s] must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions. Based on the weight of the credible evidence, the court then decides whether the jury was justified in finding the defendant guilty beyond a reasonable doubt.” People v. Danielson, 9 N.Y.3d 342 at 348. See also People v. Finney, 181 A.D.2d 789, 790 (2d Dep’t 1992) (citing People v. Gaimari, 176 N.Y.F 84, 94 [1903]); accord 30 People v. Sirghi, 273 A.D.2d 417, 418 (2d Dep’t 2000); C.P.L. § 470.15(5). Here, the court having heard the testimony of both Officer Harrison and defendant, and having viewed the exhibits presented at trial, could assess for itself the distance between the officer and defendant, in determining whether or not the officer could have seen what she testified to seeing. This evidence alone, if believed by the trier of fact, was enough to support defendant’s conviction. See People v. Calabria, 3 N.Y.3d 80, 82 (2004) (the testimony of one witness can be enough to support a conviction -- it is typically the province of the jury to determine a witness's credibility); People v. Hoyte, 79 A.D.3d 1071 (2d Dep’t 2010) (testimony of arresting officer was not “manifestly untrue, physically impossible, contrary to experience, or self-contradictory”). The trier of fact, the sole arbiter of credibility in this instance, reasonably rejected defendant’s testimony, and credited the testimony of the People’s witnesses, in concluding that defendant was guilty beyond a reasonable doubt. See People v. Harvey, 76 A.D.3d 605, 605 (2d Dep’t 2010) (it was reasonable for the jury to credit the complainant's testimony identifying the defendant as one of the assailants and to reject the testimony of the defendant and his alibi witnesses). In sum, the People’s witness gave credible testimony about observing defendant drop the crack pipe and about retrieving 31 that pipe containing cocaine residue, a few inches away from where defendant stood. Defendant gave opposing testimony denying possession of the pipe with crack cocaine residue, and even claiming Officer Harrison had nothing to do with stopping or arresting him. The fact finder was entitled to credit the police officer’s testimony while rejecting the self-serving testimony of defendant. See People v. Garba, 253 A.D.2d 766, 766 (2d Dep’t 1998) (conviction supported by weight of the evidence despite “inconsistencies in the police officers’ testimony, the alibi testimony provided by [the defendant’s] former girlfriend, and the purchasers’ testimony that they did not purchase the crack cocaine from the defendant”); People v. Ross, 184 A.D.2d 670, 670 (2d Dep’t 1992) (conviction supported by weight of the evidence where an undercover officer testified, prerecorded buy money was found on a defendant, and a jury could reject defense witnesses’ testimony as incredible). Accordingly, defendant’s conviction was not against the weight of the evidence and his conviction should not be disturbed. 32 CONCLUSION FOR THE ABOVE STATED REASONS, DEFENDANT’S JUDGMENT OF CONVICTION SHOULD BE AFFIRMED. Dated: Brooklyn, New York March 31, 2011 Respectfully submitted, CHARLES J. HYNES District Attorney Kings County LEONARD JOBLOVE RHEA A. GROB MARIE JOHN-DRIGO Assistant District Attorneys of Counsel 33 Certificate of Compliance Pursuant to 22 NYCRR § 670.10.3(f) This brief was prepared on a computer. A monospaced typeface was used, as follows: Name of typeface: Courier New Point size: 12 Line spacing: Double According to the word count of the word processing system used to prepare the brief, the total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc., is 6,710. Marie John-Drigo Assistant District Attorney