PEOPLE v. DOUGLAS

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

The PEOPLE, etc., respondent, v. John DOUGLAS, appellant.

Decided: December 27, 2005

THOMAS A. ADAMS, J.P., STEPHEN G. CRANE, SONDRA MILLER, and WILLIAM F. MASTRO, JJ. Lynn W.L. Fahey, New York, N.Y. (Steven R. Bernhard of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, Keshia Espinal, Sharon Y. Brodt, and Howard McCallum of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lewis, J.), rendered October 24, 2003, convicting him of criminal possession of a controlled substance in the fourth degree and criminally using drug paraphernalia in the second degree (two counts), after a nonjury trial, and imposing sentence.

ORDERED that the judgment is modified, on the law, by vacating the conviction of criminal possession of a controlled substance in the fourth degree, vacating the sentence imposed thereon, and dismissing that count of the indictment;  as so modified, the judgment is affirmed.

The People failed to adduce testimony providing reasonable assurances of the identity and the unchanged condition of the cocaine the defendant allegedly possessed (see People v. Julian, 41 N.Y.2d 340, 343-345, 392 N.Y.S.2d 610, 360 N.E.2d 1310;  People v. Montoya, 244 A.D.2d 510, 510-511, 664 N.Y.S.2d 106;  People v. Espino, 208 A.D.2d 556, 557, 616 N.Y.S.2d 782;  People v. Steiner, 148 A.D.2d 980, 981-982, 539 N.Y.S.2d 217).   Consequently, that evidence was inadmissible, rendering the evidence against the defendant legally insufficient to support a conviction of criminal possession of a controlled substance in the fourth degree (see Penal Law § 220.09[1];  People v. Julian, supra at 343-345, 392 N.Y.S.2d 610, 360 N.E.2d 1310;  People v. Montoya, supra at 510-511, 664 N.Y.S.2d 106;  People v. Espino, supra at 557, 616 N.Y.S.2d 782;  People v. Steiner, supra at 981-982, 539 N.Y.S.2d 217;  cf. People v. Sarmiento, 168 A.D.2d 328, 565 N.Y.S.2d 1, affd. 77 N.Y.2d 976, 571 N.Y.S.2d 906, 575 N.E.2d 392).

The defendant does not argue that the drug paraphernalia were erroneously admitted into evidence.   Rather, he argues that the convictions of two counts of criminally using drug paraphernalia in the second degree were not supported by legally sufficient evidence and the verdict of guilt thereof was against the weight of the evidence.   The defendant has not preserved his contention that the evidence was legally insufficient to sustain those counts (see People v. Gray, 86 N.Y.2d 10, 20-21, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that the evidence as to the counts charging criminally using drug paraphernalia in the second degree was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see Penal Law § 220.50).   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt as to those counts was not against the weight of the evidence (see CPL 470.15[5] ).

The defendant's remaining contentions, including those raised in his supplemental pro se brief, are without merit.

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