THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. TIMOTHY WALTERS DEFENDANT APPELLANT (2015)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him upon a nonjury verdict of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ), criminal possession of a controlled substance in the fourth degree (§ 220.09[1] ), criminally using drug paraphernalia in the second degree (§ 220.50[2] ), and unlawful possession of marihuana (§ 221.05).   Defendant failed to preserve for our review his contention that a certain individual at the house where defendant and the contraband were found did not have authority to consent to the warrantless search there (see generally People v. Price, 112 AD3d 1345, 1345–1346;  People v. Caballero, 23 AD3d 1031, 1032, lv denied 6 NY3d 846), and we decline to exercise our power to address it as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Contrary to defendant's further contention, County Court (DeMarco, J.) properly concluded that the individual voluntarily consented to the police entry into the house (see People v. Gonzalez, 39 N.Y.2d 122, 127–128;  People v. McCray, 96 AD3d 1480, 1481, lv denied 19 NY3d 1104).   Defendant's contention that the evidence subsequently obtained pursuant to the search warrant should be suppressed as fruit of the poisonous tree thus lacks merit (see generally Wong Sun v. United States, 371 U.S. 471, 484–485).

Contrary to defendant's further contention, the court properly considered the “drug factory” presumption (Penal Law § 220.25[2] ) with respect to the counts of criminal possession of a controlled substance in the third and fourth degrees (see e.g. People v. Pressley, 294 A.D.2d 886, 887, lv denied 98 N.Y.2d 712;  People v. Riddick, 159 A.D.2d 596, 597, lv denied 76 N.Y.2d 741;  cf.  People v. Kims, _ NY3d _, _ [Oct. 23, 2014] ).   Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621), we conclude that it is legally sufficient to support the conviction (see generally People v. Bleakley, 69 N.Y.2d 490, 495).   Viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v. Danielson, 9 NY3d 342, 349), we also conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495).

We reject defendant's further contention that the Molineux court (Castro, A.J.) abused its discretion in permitting the People to present evidence that defendant was present at a location where the police previously made an undercover purchase of narcotics (see People v. Whitfield, 115 AD3d 1181, 1182, lv denied 23 NY3d 1044;  People v. Ray, 63 AD3d 1705, 1706, lv denied 13 NY3d 838;  People v. Lowman, 49 AD3d 1262, 1263, lv denied 10 NY3d 936).   Defendant's contention that reversal is required based upon a Rosario violation is also meritless.  “Reversal based upon a Rosario violation is necessary only when a defendant demonstrates that he has been substantially prejudiced” (People v. Turner, 216 A.D.2d 931, 932, lv denied 86 N.Y.2d 804;  see People v. Comfort, 60 AD3d 1298, 1300, lv denied 12 NY3d 924) and, here, defendant has not made the necessary showing of substantial prejudice (see People v. Gardner, 26 AD3d 741, 741, lv denied 6 NY3d 848;  People v. Goston, 9 AD3d 905, 906–907, lv denied 3 NY3d 706).

Viewing the evidence, the law and the circumstances of this case, in totality and as of the time of representation, we conclude that defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147).   Finally, the sentence is not unduly harsh or severe.

Frances E. Cafarell

Clerk of the Court