PEOPLE v. DOWNS

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Anthony L. DOWNS, Defendant-Appellant.

Decided: September 30, 2005

PRESENT:  GREEN, J.P., HURLBUTT, SCUDDER, GORSKI, AND LAWTON, JJ. Edward J. Nowak, Public Defender, Rochester (Timothy P. Donaher of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him after a jury trial of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09[1] ), criminal possession of a controlled substance in the seventh degree (§ 220.03), and criminally using drug paraphernalia in the second degree (§ 220.50[2] ).   We reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The arresting police officers testified that they observed defendant walking away from the bathroom as they entered the building at issue pursuant to a search warrant, and they recovered 46 plastic baggies floating in the toilet from that bathroom.   The baggies later were determined to be filled with crack cocaine.   Thus, the officers' testimony placed defendant in proximity to the baggies of cocaine in the toilet, and “[d]efendant's proximity to the cocaine, which was in plain view, constitutes direct evidence of defendant's possession of the cocaine found in the apartment” (People v. Wilson, 284 A.D.2d 958, 958, 726 N.Y.S.2d 322, lv. denied 96 N.Y.2d 943, 733 N.Y.S.2d 383, 759 N.E.2d 382;  see § 220.25[2];  see generally People v. Gardner, 163 A.D.2d 892, 892-893, 559 N.Y.S.2d 63).   In addition, police witnesses testified that defendant's hands were wet when defendant emerged from the bathroom.   The jury was entitled to discredit the testimony of defendant's cousin, a codefendant, that defendant played no part in selling, preparing or possessing the drugs found at the scene, and “ [g]reat deference [must be] accorded to the fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor” (Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Finally, defendant's 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: