THE PEOPLE OF THE STATE OF NEW YORK v. JEREMIAH HERBERT (2026)

MEMORANDUM AND ORDER

Calendar Date:  September 9, 2026

Appeals (1) from a judgment of the County Court of Sullivan County (James Farrell, J.), rendered March 13, 2023, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the fourth degree and criminal possession of a controlled substance in the third degree (two counts), and (2) by permission, from an order of said court, entered July 5, 2023, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

In April 2022, State Police executed a search warrant for an apartment in the Town of Liberty, Sullivan County, in connection with a narcotics investigation into the two individuals believed to be residing there (hereinafter collectively referred to as the roommates).  The roommates were apprehended outside of the apartment and, upon entering the apartment, police encountered defendant and his girlfriend.  The subsequent search revealed, among other items, drug paraphernalia and an unlocked combination-style lockbox in the living room containing a large quantity of narcotics that law enforcement opined were packaged for resale.  Defendant was thereafter charged by indictment with three counts of criminal possession of a controlled substance in the third degree.  Prior to trial, count 1 was reduced to criminal possession of a controlled substance in the fourth degree.

At defendant's jury trial, the roommates and the girlfriend (hereinafter collectively referred to as the accomplices) each testified against defendant pursuant to cooperation agreements with the People and identified the lockbox, among other items, as belonging to defendant.  Ultimately, defendant was convicted of criminal possession of a controlled substance in the fourth degree (see Penal Law § 220.09[1] ) (count 1) and the two remaining counts of criminal possession of a controlled substance in the third degree (see Penal Law § 220.16[1] ) (counts 2 and 3).  He was sentenced, as a second felony drug offender, to a prison term of nine years, to be followed by three years of postrelease supervision, on count 1, and two concurrent prison terms of 15 years, to be followed by three years of postrelease supervision, on counts 2 and 3. Defendant then filed a pro se CPL article 440 motion, arguing, among other things, that he received the ineffective assistance of counsel.  County Court, in a detailed decision, denied the motion without a hearing.  Defendant appeals from the judgment of conviction and, by permission, the denial of his CPL article 440 motion.

Turning first to defendant's legal sufficiency and weight of the evidence challenges, he contends that the People failed to establish that he constructively possessed the drugs found in the apartment, the majority of which were discovered in the lockbox.  Specifically, he asserts that the only evidence establishing such possession was the uncorroborated testimony of the accomplices.  Defendant's legal sufficiency challenge, however, is unpreserved as a result of his failure to move for a trial order of dismissal (see People v. Ashe, 208 AD3d 1500, 1501 [3d Dept 2022], lv denied 39 NY3d 961 [2022];  People v. Smith, 201 AD3d 1126, 1127 [3d Dept 2022], lv denied 38 NY3d 1035 [2022] ).  “Nevertheless, in the course of reviewing defendant's weight of the evidence challenge, this Court necessarily evaluates whether all elements of the charged crimes were proven beyond a reasonable doubt” (People v. Scott, 250 AD3d 1345, 1347 [3d Dept 2026] [internal quotation marks and citations omitted], lv denied _ NY3d _ [Sept. 14, 2026];  see People v. Childs, 250 AD3d 1362, 1363 [3d Dept 2026], lv denied _ NY3d _ [Sep. 30, 2026] ).

As charged to the jury, “[a] person is guilty of criminal possession of a controlled substance in the fourth degree when he [or she] knowingly and unlawfully possesses ․ one or more preparations, compounds, mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures or substances are of an aggregate weight of one-eighth ounce or more” (Penal Law § 220.09[1] ).  As to counts 2 and 3, “[a] person is guilty of criminal possession of a controlled substance in the third degree when he [or she] knowingly and unlawfully possesses ․ a narcotic drug with intent to sell it” (Penal Law § 220.16[1] ).  Where, as here, the People proceed on a theory of constructive possession, they are required to demonstrate that the defendant “exercised dominion or control over the property by a sufficient level of control over the area in which the contraband was found” (People v. Smith, 237 AD3d 1367, 1369 [3d Dept 2025] [internal quotation marks and citations omitted], lv denied 43 NY3d 1059 [2025];  see Penal Law § 10.00[8];  People v. James, 245 AD3d 1102, 1105 [3d Dept 2026], lv denied 45 NY3d 946 [2026] ).  They may establish this “through circumstantial proof and ․ exclusivity of access is not required” (People v. Torres, 247 AD3d 1270, 1271 [3d Dept 2026], lv denied 45 NY3d 1020 [2026];  see People v. Kendricks, 226 AD3d 1150, 1151 [3d Dept 2024], lv denied 41 NY3d 1003 [2024] ).  However, “[a] defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense” (CPL 60.22[1];  see People v. Caban, 5 NY3d 143, 154–155 [2005];  People v. Rock, 250 AD3d 1128, 1129–1130 [3d Dept 2026], lv denied 46 NY3d 929 [2026] ).

The People's proof at trial established that, upon entering the apartment, the lead investigator observed the girlfriend exiting the living room and defendant exiting the sole bedroom.  In the living room, the investigator discovered, among other items, a black digital scale containing white powder residue, glassine envelopes containing a white powder later confirmed to be fentanyl located on a tray table, empty glassine envelopes consistent with those used for drug packaging and a combination-style lockbox.  The lockbox was located on top of a futon and was unlocked.  The lockbox contained various items, including large amounts of substances, later confirmed to be cocaine and fentanyl, individually wrapped in plastic bags, as well as a plastic sorting container with the numbers “20” and “50,” which the investigator opined were common prices for small quantities of crack cocaine.  The girlfriend testified that the drugs on the tray table belonged to defendant and that she purchased the lockbox for defendant.  The girlfriend stated that aside from one vial in the lockbox, the contents belonged solely to defendant.  The roommates similarly testified that the lockbox and its contents belonged to defendant.  They also testified to conducting drug transactions at defendant's behest in exchange for drugs they could use recreationally.  As to who was residing at the apartment, the accomplices each confirmed that beginning in February 2022, defendant and the girlfriend began living in the bedroom of the apartment and they would stay there for weeks at a time.  During the execution of the search warrant, the investigator found a jacket hanging in the closet that defendant later requested to wear when he was transported to the police barracks and, among other things, a black cell phone.

The People introduced into evidence call and text records extracted from the phone found in the bedroom, as well as photographs of emails from the email account set up on the phone (hereinafter collectively referred to as the phone records).  The photographs depict one email that is addressed to defendant by name and numerous emails reflecting payment and request confirmations from Cash App – an application used to transfer money from one party to another.  The investigator testified that the use of Cash App is significant in the context of suspected drug transactions because the transactions can be hidden so that the only individuals that can view the transactions are the sender and recipient.  The investigator also opined that the specific payment amounts reflected were notable as they corresponded to “drug pricing in this area” and to the 20 and 50 denominations on the plastic sorting container.  One of the roommates testified that he knew several of the individuals identified by name in the Cash App payments and that such individuals were drug users.  As to the text messages extracted from the cell phone, the investigator testified that, based upon his training and experience, the language used in many of the text messages was coded terminology customarily used in drug transactions.  A text message from one of the roommates asked if he “could come through ․ [and] do some work,” which indicated to the investigator that the roommate was selling drugs for defendant.  He also testified that, in a four-day period, there were 395 incoming and outgoing phone calls on the cell phone, indicating that the phone was “regularly used to conduct narcotics transactions.”  The accomplices each testified to defendant's frequent phone usage, with the girlfriend stating that defendant's phone was “[c]onstantly going off.”  For his part, defendant introduced, among other pieces of evidence, the search warrant affidavit reflecting that he was not the original target of the investigation.

Although another verdict would not have been unreasonable considering the nature of the corroborative evidence, upon viewing the evidence in a neutral light and deferring to the jury's credibility determination, the verdict is supported by the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348 [2007];  People v. Romero, 7 NY3d 633, 643–644 [2006] ).  The investigator's testimony of what he observed upon executing the search warrant, along with the phone records, provided the “slim corroborative linkage” necessary to “reasonably satisfy the jury that the accomplice[s] [were] telling the truth” (People v. Reome, 15 NY3d 188, 192 [2010] [internal quotation marks and citation omitted];  see People v. Turner, 178 AD3d 70, 74 [3d Dept 2019];  compare People v. Lee, 80 AD3d 877, 878 [3d Dept 2011], lv denied 16 NY3d 833 [2011] ).  We reject defendant's suggestion that the corroborative evidence needed to directly tie him to the lockbox as it is enough if the “corroborative evidence[,] ․ read with the accomplice's testimony, makes it more likely that the defendant committed the offense” (People v. Reome, 15 NY3d at 194).  Indeed, “even seemingly insignificant matters may harmonize with [an] accomplice's narrative so as to provide the necessary corroboration” (People v. Caban, 5 NY3d at 155 [internal quotation marks, brackets and citation omitted];  accord People v. Mercer, 221 AD3d 1259, 1264 [3d Dept 2023], lv denied 41 NY3d 1003 [2024] ).  The corroborative evidence introduced here meets this minimal requirement and, when coupled with the accomplices' testimony, established defendant's constructive possession of the lockbox and drugs recovered from the tray table (see People v. Torres, 247 AD3d at 1272;  People v. Hayward, 213 AD3d 989, 992 [3d Dept 2023], affd 42 NY3d 753 [2024] ).  Further, to the extent defendant contends that the accomplices' testimony lacked credibility, any issues with their credibility were fully explored on cross-examination (see People v. Williams, 177 AD3d 1178, 1184 [3d Dept 2019], lv denied 34 NY3d 1164 [2020];  People v. Peterkin, 159 AD3d 1196, 1198 [3d Dept 2018], lv denied 31 NY3d 1151 [2018];  People v. Forbes, 111 AD3d 1154, 1157–1158 [3d Dept 2013] ).¹

We are unpersuaded by defendant's next contention that County Court erred by allowing the phone records into evidence pursuant to Molineux.  Defendant's argument is two-fold.  First, he contends that the court erred because the phone records constituted hearsay and the People failed to establish that the phone belonged to him.  Second, he disagrees with both steps of the court's Molineux analysis.  As to the first aspect, his argument is wholly unpreserved as his opposition to the People's Molineux proffer was limited to his belief that the phone records only showed propensity and that the prejudicial impact of admission was too great (see People v. Everett, 231 AD3d 1296, 1300–1301 [3d Dept 2024], lv denied 42 NY3d 1052 [2024] ).  In fact, when asked at trial whether he had an objection to the admission of the phone records on foundation grounds, defendant conceded that “[f]oundation [was] laid.”  Turning to the second aspect of his argument, “[i]n reviewing a Molineux ruling, this Court must first assess whether the People have identified some issue, other than mere criminal propensity, to which the evidence is relevant” (People v. Williams, 251 AD3d 1289, 1291 [3d Dept 2026] [internal quotation marks and citations omitted];  see People v. Henderson, _ NY3d _, _, 2026 N.Y. Slip Op 01627, *3 [2026] ).  “If the evidence is relevant to some issue other than propensity, we consider whether the probative value of the evidence outweighs its potential for prejudice” (People v. Telfair, 41 NY3d 107, 114 [2023] [internal quotation marks and citations omitted];  see People v. Bohn, 242 AD3d 1357, 1367 [3d Dept 2025] ).

Here, County Court appropriately determined that the phone records were relevant to the issues of intent to sell and the identity of the seller of the drugs found in the apartment in light of the fact that the accomplices also had access to the apartment and defendant testified before the grand jury that he was merely using drugs recreationally (see People v. Valentin, 29 NY3d 150, 156–157 [2017];  People v. Byrd, 152 AD3d 984, 989 [3d Dept 2017];  compare People v. Henderson, _ NY3d at _, 2026 N.Y. Slip Op 01627, *5).  The court also aptly found that the phone records were part of the res gestae and were inextricably woven into the facts of the case (see People v. Kendricks, 226 AD3d at 1156;  People v. Baber, 182 AD3d 794, 801 [3d Dept 2020], lv denied 35 NY3d 1064 [2020];  People v. Chavys, 263 A.D.2d 964, 965 [4th Dept 1999], lv denied 94 N.Y.2d 821 [1999] ).  We also agree with County Court that the highly probative nature of the phone records outweighed the prejudice, particularly considering that the phone records were limited to a discrete time period and the court provided several limiting instructions regarding the use of this evidence both throughout the trial and during the final instructions, thereby limiting the risk of prejudice (see People v. Williams, 251 AD3d at 1292;  People v. Daniels, 247 AD3d 1257, 1263 [3d Dept 2026], lv denied 45 NY3d 1015 [2026] ).

Defendant's contention that County Court abused its discretion in permitting cross-examination, should he testify, into his prior drug-related convictions is unpreserved for our review as defendant failed to object after the court's ruling (see People v. Hawkins, 11 NY3d 484, 494 [2008];  People v. Buchanan, 251 AD3d 1301, 1306–1307 [3d Dept 2026];  People v. Cuadrado, 227 AD3d 1174, 1181 [3d Dept 2024], lv denied 42 NY3d 969 [2024] ).  In any event, we discern no abuse of discretion in the court's Sandoval ruling and the court limited any prejudice by assuring the parties that it would provide an appropriate limiting instruction (see People v. Smith, 18 NY3d 588, 593–594 [2012];  People v. Daniels, 247 AD3d at 1263;  see also People v. Rahman, 62 A.D.2d 968, 968 [1st Dept 1978], affd 46 N.Y.2d 882 [1979] ).

Similarly unpreserved for our review is defendant's contention that County Court abused its discretion when it permitted the investigator to opine, based upon his extensive experience and training in narcotics and drug trafficking investigations, that the roommates were customers of defendant and likely assisted defendant in his sales to support their own drug habits.  Prior to expressing this opinion, the investigator testified in detail – without objection – to his opinion that coded language used in a text message sent by one roommate to defendant indicated that the roommate was “willing to do work in exchange for the narcotics that he[ ] requested from ․ defendant.”  When the investigator was later asked whether he believed that the roommates were working for defendant to sell drugs, defense counsel lodged an objection to the form of the question posed.  The objection was sustained, the prosecutor rephrased the question and defense counsel once again objected.  At this point, the court overruled the objection, leading to the investigator providing the challenged testimony.  In our view, read in context, defendant's objection precipitating the challenged testimony was to the form of the question posed and did not implicate the argument he now advances on appeal – i.e., that the investigator impermissibly opined on the ultimate issue in the case – thus rendering the issue unpreserved (see People v. Blackman, 118 AD3d 1148, 1150–1151 [3d Dept 2014] ).  We further decline to take corrective action in the interest of justice (see generally People v. Casanova, 152 AD3d 875, 878 [3d Dept 2017], lv denied 30 NY3d 948 [2017];  People v. Wright, 283 A.D.2d 712, 713 [3d Dept 2001], lv denied 96 N.Y.2d 926 [2001] ).

Defendant next contends that County Court committed a mode of proceedings error in response to a jury note submitted during deliberations asking for “a copy of the search warrant.”  The record reflects that after receiving this jury note, the court proposed to the parties that the jury be provided with the copy of the search warrant entered into evidence as a People's exhibit.  Both parties agreed with the court's proposal.  After the response was given to the jury and the jury was excused from the courtroom, both parties stated that they did not have an objection to the court's response and the court noted:  “we'll wait and see if they come out with another note.  If they want the affidavit.”  The court obtained the parties' consent to provide the jury with the search warrant affidavit if a further note was received requesting that document.  Based on these facts, we find that no mode of proceedings error occurred because County Court complied with its core duty “both to give meaningful notice to counsel of the specific content of the jurors' request ․ and to provide a meaningful response to the jury” (People v. Kisoon, 8 NY3d 129, 134 [2007];  accord People v. Cokely, 249 AD3d 1329, 1339 [3d Dept 2026];  see CPL 310.30).  Indeed, the court provided the jury with exactly what they requested:  a copy of the search warrant, thereby responding meaningfully to the request.  We reject defendant's contention that the court was under an obligation to clarify if the jury meant to include the search warrant affidavit in their request, as the jury note was unambiguous and, moreover, defendant “agree[d] with [the court's] proposal” on how to respond (see People v. Leonard, 177 AD3d 1158, 1162 [3d Dept 2019], lv denied 34 NY3d 1160 [2020];  compare People v. Clark, 108 AD3d 797, 799 [3d Dept 2013] ).

Defendant's final argument on his direct appeal asserts that his sentence was unduly harsh and severe and, to that end, he asks that we modify it in the interest of justice (see CPL 470.15[6][b] ).  Although defendant received the maximum permissible sentence on each count as a second felony drug offender with a prior violent felony (see Penal Law § 70.70[4][b][i], [ii] ), considering his lengthy criminal history, the majority of which is drug-related, and the fact that defendant has been undeterred by prior, more lenient sentences, we find that his sentence was not unduly harsh or severe (see People v. Daniels, 247 AD3d at 1264–1265).  Moreover, we perceive no reason to disturb County Court's decision declining to order defendant's enrollment in a comprehensive alcohol and substance abuse treatment program (see Penal Law § 60.04[6];  People v. Richardson, 62 AD3d 1211, 1212 [3d Dept 2009], lv denied 13 NY3d 838 [2009] ).

Turning to defendant's appeal from the denial of his pro se CPL article 440 motion, the crux of his argument is that County Court was required to assign him counsel.  We disagree.  The Court of Appeals has made clear that “defendants do not have an automatic right to counsel to assist with CPL 440.10 motions” (People v. Scott, 44 NY3d 302, 312 [2025];  accord People v. Nelson, 243 AD3d 958, 962 [3d Dept 2025];  see County Law § 722[5] ).  There is no indication in the record before us that defendant asked County Court to assign him counsel.  In the absence of such request, we cannot say that County Court abused its discretion by failing to sua sponte appoint counsel to represent defendant in connection with his pro se CPL article 440 motion (see County Law § 722[5] ).  To the extent that defendant, in his pro se brief, challenges the denial of his CPL article 440 motion insofar as it alleged that trial counsel took a position adverse to him, we find that County Court properly rejected this claim (see People v. Hutchinson, 57 AD3d 1013, 1015 [3d Dept 2008], lv denied 12 NY3d 817 [2009] ).²

Defendant's remaining contentions, including those set forth in his pro se brief, have been reviewed and found to be lacking in merit.

Garry, P.J., Aarons, Pritzker and Mackey, JJ., concur.

ORDERED that the judgment and the order are affirmed.

FOOTNOTES

1.   To the extent defendant claims that the investigator's testimony also lacked credibility due to a discrepancy between the testimony he gave before the grand jury and at trial, this issue was also fully explored on cross-examination.  Relatedly, we reject defendant's unsupported assertion that the People “improperly persuaded” the investigator to “change his story.”

2.   County Court also properly found that defendant's allegation of judicial misconduct based upon statements the court made at sentencing was not the proper subject of a CPL article 440 motion (see CPL 440.10[2][b] ).  The other claims raised in defendant's CPL article 440 motion have been abandoned (see People v. Oquendo, 248 AD3d 1325, 1336 n 6 [3d Dept 2026], lv denied 45 NY3d 1018 [2026] ).

McShan, J.