PEOPLE v. RIVERA

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Pastor RIVERA, Defendant-Appellant.

Decided: March 21, 2001

PRESENT:  PIGOTT, JR., P.J., HAYES, SCUDDER, BURNS and LAWTON, JJ. Garry Stephen Hanlon, for defendant-appellant. Patrick H. Fierro, for plaintiff-respondent

 On appeal from a judgment convicting him following a jury trial of criminal possession of a controlled substance in the first degree (Penal Law § 220.21[1] ), criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ) and conspiracy in the second degree (Penal Law § 105.15), defendant contends that the conviction is not supported by legally sufficient evidence.   We disagree.   Defendant's vehicle was pulled over by Rochester police officers as it exited the New York State Thruway, and a kilo of cocaine was found in a hydraulically-operated hidden compartment in the dashboard.   At the time of his arrest, defendant admitted that the vehicle and the cocaine were his.   In addition, the People presented evidence that inositol, a cutting agent, was found in defendant's home.   Viewing the evidence in the light most favorable to the People (see, People v. Ford, 66 N.Y.2d 428, 437, 497 N.Y.S.2d 637, 488 N.E.2d 458), we conclude that it is legally sufficient to support the conviction of criminal possession of a controlled substance in the first degree, i.e., that defendant possessed the cocaine with the intent to sell it, and is legally sufficient to support the conviction of criminal possession of a controlled substance in the third degree.   In addition, the conspiracy conviction is supported by legally sufficient evidence.   The People presented evidence that defendant had agreed with a codefendant to purchase cocaine in New York City and transport it to Rochester.   The police intercepted telephone conversations involving the codefendant, pursuant to an eavesdropping warrant, which police officers interpreted as establishing that the codefendant was making plans to go to New York City to purchase a kilo of cocaine.   The codefendant then telephoned defendant and arranged a meeting.   The next day, defendant's vehicle was stopped while returning from New York City, and a kilo of cocaine was discovered in the vehicle.   That evidence, viewed in the light most favorable to the People (see, People v. Ford, supra, at 437, 497 N.Y.S.2d 637, 488 N.E.2d 458), is legally sufficient to support the conspiracy conviction (see generally, People v. Givens, 181 A.D.2d 1031, 1033, 582 N.Y.S.2d 577, lv. denied 79 N.Y.2d 1049, 584 N.Y.S.2d 1017, 596 N.E.2d 415).

The verdict is not against the weight of the evidence.   The jury was entitled to reject the testimony of defendant that he did not know that the cocaine was in his vehicle, and we cannot conclude that the jury failed to give the evidence the weight that it should be accorded (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 Although certain comments made by the prosecutor on summation were improper, Supreme Court did not abuse its discretion in denying defendant's motion for a mistrial based on those comments.   The comments were isolated and not so egregious as to deprive defendant of a fair trial (see, People v. Maddox, 256 A.D.2d 1066, 1067, 685 N.Y.S.2d 149;  People v. Cox, 256 A.D.2d 1244, 684 N.Y.S.2d 366, lv. denied 93 N.Y.2d 923, 693 N.Y.S.2d 506, 715 N.E.2d 509).   Further, the court sustained defendant's objection to the comments and gave curative instructions to the jury, which it is presumed to have followed (see, People v. Cruz, 272 A.D.2d 922, 923, 709 N.Y.S.2d 717, lv. granted 95 N.Y.2d 859, 714 N.Y.S.2d 11, 736 N.E.2d 872).

The sentence is neither unduly harsh nor severe.   We have examined defendant's remaining contentions and conclude that they are lacking in merit.

Judgment unanimously affirmed.

MEMORANDUM: