PEOPLE v. GARY (2005)

 On appeal from a judgment convicting him, following a nonjury trial, of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ), criminal possession of a controlled substance in the fifth degree (§ 220.06[5] ) and criminally using drug paraphernalia in the second degree (§ 220.50[2] ), defendant contends that County Court erred in denying his motion to suppress physical evidence.   We reject that contention.   Giving great deference to the court's determination of credibility (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380), we conclude that the court properly determined that the tenant of the apartment where defendant was found consented to the search of her apartment (see People v. Montgomery, 224 A.D.2d 914, 914-915, 637 N.Y.S.2d 577, lv. denied 88 N.Y.2d 882, 645 N.Y.S.2d 456, 668 N.E.2d 427;  People v. Caldwell, 221 A.D.2d 972, 972-973, 634 N.Y.S.2d 331, lv. denied 87 N.Y.2d 920, 641 N.Y.S.2d 602, 664 N.E.2d 513;  see generally People v. Gonzalez, 39 N.Y.2d 122, 127-130, 383 N.Y.S.2d 215, 347 N.E.2d 575).   We further conclude that defendant was properly detained on the reasonable belief that he was the subject of the warrant being executed by police officers (see Hill v. California, 401 U.S. 797, 802-803, 91 S.Ct. 1106, 28 L.Ed.2d 484;  People v. Fernando, 184 A.D.2d 413, 414-415, 585 N.Y.S.2d 51), or that he was the subject of a different outstanding warrant (see People v. Brown, 190 A.D.2d 1003, 1003-1004, 593 N.Y.S.2d 624, lv. denied 81 N.Y.2d 968, 598 N.Y.S.2d 769, 615 N.E.2d 226;  see generally People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562).   Once the police determined that defendant was the subject of an outstanding warrant, the officers had probable cause to arrest him (see generally De Bour, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562).   We further conclude that the police were entitled to search the pockets of defendant's jacket incident to defendant's arrest before giving it to defendant to wear (see e.g. People v. Capers, 298 A.D.2d 184, 748 N.Y.S.2d 142, lv. denied 99 N.Y.2d 580, 755 N.Y.S.2d 716, 785 N.E.2d 738;  People v. Torres [Felix], 133 A.D.2d 713, 714, 519 N.Y.S.2d 878, revd. on other grounds 72 N.Y.2d 1007, 534 N.Y.S.2d 914, 531 N.E.2d 635;  see generally Chimel v. California, 395 U.S. 752, 762-763, 89 S.Ct. 2034, 23 L.Ed.2d 685, reh. denied 396 U.S. 869, 90 S.Ct. 36, 24 L.Ed.2d 124).

 Contrary to defendant's further contentions, the court properly admitted expert testimony to establish whether certain items were “inconsistent with personal use and consistent with drug dealing” (People v. Hartzog, 15 A.D.3d 866, 867, 789 N.Y.S.2d 391, lv. denied 4 N.Y.3d 831, 796 N.Y.S.2d 586, 829 N.E.2d 679;  see People v. Hicks, 2 N.Y.3d 750, 751, 778 N.Y.S.2d 745, 811 N.E.2d 7;  see also People v. Caldwell, 221 A.D.2d 972, 973, 634 N.Y.S.2d 331, lv. denied 87 N.Y.2d 920, 641 N.Y.S.2d 602, 664 N.E.2d 513), and the conviction of criminally using drug paraphernalia is supported by legally sufficient evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672) and is not violative of the legislative intent underlying the enactment of the statute (see e.g. People v. Chaney, 298 A.D.2d 617, 617-618, 748 N.Y.S.2d 182, lv. dismissed in part and denied in part 100 N.Y.2d 537, 763 N.Y.S.2d 2, 793 N.E.2d 416;  People v. Johnson, 261 A.D.2d 833, 834, 689 N.Y.S.2d 569, lv. denied 93 N.Y.2d 1020, 697 N.Y.S.2d 579, 719 N.E.2d 940).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: