PEOPLE v. JOHNSON (2022)

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, inter alia, two counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]). We affirm.

We reject defendant's contention that Supreme Court erred in refusing to suppress physical evidence and defendant's statements as the fruit of an unlawful search and seizure. Here, the evidence at the suppression hearing established that the action taken by the police officer was justified in its inception and at every subsequent stage of the encounter leading to defendant's arrest (see People v. Simmons, 30 N.Y.3d 957, 958, 64 N.Y.S.3d 634, 86 N.E.3d 526 [2017]; People v. White, 117 A.D.3d 425, 425, 985 N.Y.S.2d 47 [1st Dept. 2014], lv denied 23 N.Y.3d 1044, 993 N.Y.S.2d 258, 17 N.E.3d 513 [2014]; People v. Carter, 109 A.D.3d 1188, 1189, 971 N.Y.S.2d 722 [4th Dept. 2013], lv denied 22 N.Y.3d 1087, 981 N.Y.S.2d 673, 4 N.E.3d 975 [2014]; see generally People v. De Bour, 40 N.Y.2d 210, 222-223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976]).

Contrary to defendant's further contention, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983]), we conclude that the evidence is legally sufficient to establish that defendant possessed heroin and cocaine with the intent to sell (see People v. Freeman, 28 A.D.3d 1161, 1162, 813 N.Y.S.2d 597 [4th Dept. 2006], lv denied 7 N.Y.3d 788, 821 N.Y.S.2d 818, 854 N.E.2d 1282 [2006]; People v. Bell, 296 A.D.2d 836, 837, 745 N.Y.S.2d 359 [4th Dept. 2002], lv denied 98 N.Y.2d 766, 752 N.Y.S.2d 6, 781 N.E.2d 918 [2002]). In addition, viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]), we conclude that the verdict is not against the weight of the evidence (see Freeman, 28 A.D.3d at 1162, 813 N.Y.S.2d 597; Bell, 296 A.D.2d at 837, 745 N.Y.S.2d 359; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]).

Finally, even assuming, arguendo, that defendant's contention that the court punished him for exercising his right to trial is preserved for our review (see CPL 470.05 [2]; see generally People v. Reome, 64 A.D.3d 1201, 1203, 883 N.Y.S.2d 419 [4th Dept. 2009], affd 15 N.Y.3d 188, 906 N.Y.S.2d 788, 933 N.E.2d 186 [2010]), we conclude that defendant's contention lacks merit (see People v. Huddleston, 160 A.D.3d 1359, 1362, 76 N.Y.S.3d 294 [4th Dept. 2018], lv denied 31 N.Y.3d 1149, 83 N.Y.S.3d 430, 108 N.E.3d 504 [2018]; People v. Walker, 234 A.D.2d 962, 963-964, 652 N.Y.S.2d 441 [4th Dept. 1996], lv denied 89 N.Y.2d 1042, 659 N.Y.S.2d 873, 681 N.E.2d 1320 [1997]).