PeoplevNichol

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: October 16, 2014 104499
________________________________

THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER

MICHAEL NICHOL,
Appellant.
________________________________

Calendar Date: September 12, 2014

Before: Peters, P.J., Stein, Garry, Egan Jr. and Clark, JJ.

__________

James P. Milstein, Public Defender, Albany (Theresa M.
Suozzi of counsel), for appellant.

P. David Soares, District Attorney, Albany (Christopher D.
Horn of counsel), for respondent.

__________

Garry, J.

Appeal from a judgment of the Supreme Court (Breslin, J.),
rendered June 15, 2011 in Albany County, upon a verdict
convicting defendant of the crimes of criminal sale of a
controlled substance in the third degree (two counts) and
criminal possession of a controlled substance in the third
degree.

In September 2010, members of the Albany County Sheriff's
Department and the City of Albany Police Department conducted two
controlled buys in which a confidential informant (hereinafter
CI) purchased heroin from defendant. The first buy took place in
a hallway in defendant's residence in the City of Albany, and the
second occurred on the street nearby. In November 2010, the two
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Departments searched the residence and discovered, among other
evidence, eight bags of heroin in the hallway.

Defendant was indicted for various crimes and, following a
jury trial, convicted of two counts of criminal sale of a
controlled substance in the third degree and one count of
criminal possession of a controlled substance in the third
degree. Supreme Court sentenced him as a second felony drug
offender to consecutive prison terms of seven years on each of
the criminal sale convictions, followed by three years of
postrelease supervision, and a prison term of seven years with
three years of postrelease supervision on the criminal possession
charge, to be served concurrently with the other sentences.
Defendant appeals.

We reject defendant's assertion that Supreme Court should
have granted his motion to suppress the evidence obtained in the
November 2010 search of his residence. The application for the
search warrant was supported by the affidavit of a sheriff's
investigator describing three controlled heroin buys at
defendant's residence that the investigator had arranged and
monitored; no hearsay statements or information attributed to
third parties were included. Where probable cause for a search
warrant is based upon the personal knowledge and first-hand
observations of the deponent, and not upon hearsay, the
Aguilar-Spinelli test does not apply (see People v Taylor, 73
NY2d 683, 688 [1989]; People v Vanhoesen, 31 AD3d 805, 806
[2006]; People v Doyle, 222 AD2d 875, 875 [1995], lv denied 88
NY2d 878 [1996]; see generally Spinelli v United States, 393 US
410 [1969]; Aguilar v Texas, 378 US 108 [1964]). Defendant's
further contention that the warrant did not include the hallway
where the heroin was found is contradicted by its plain language,
which directs a search of the first floor of defendant's
residence, including "all rooms, basements, attics, garages,
attached or unattached and the surrounding grounds."

We further reject defendant's contention that he was denied
a fair trial and discouraged from testifying by Supreme Court's
Sandoval and Molineux rulings. Before trial, the People sought
permission to impeach defendant, should he choose to testify,
with evidence of various previous convictions and bad acts.
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Supreme Court permitted full inquiry as to a 2006 grand larceny
conviction and defendant's alleged use of aliases in prior
encounters with police. The court further ruled that the People
would be permitted to inquire whether defendant had been
convicted of another felony in 2000 but would not be permitted to
inquire as to the nature of the crime – a drug-related offense –
unless defendant opened the door with his own testimony.
Otherwise, the People's request was denied. We find no abuse of
discretion in this ruling, which appropriately balanced the
probative value of the proof pertaining to defendant's
credibility against the risk of unfair prejudice (see People v
Sandoval, 34 NY2d 371, 375 [1974]; People v Waugh, 52 AD3d 853,
855 [2008], lv denied 11 NY3d 796 [2008]). As for defendant's
claim that he was prejudiced by the court's Molineux ruling, the
record reveals that the People's application to introduce
evidence of certain uncharged crimes in their case-in-chief was
denied, and – contrary to defendant's claim – the People's
witnesses made no reference to such evidence during the trial.

Defendant argues that his criminal sale convictions are not
supported by legally sufficient evidence that he knowingly and
unlawfully sold heroin, and that his criminal possession
conviction was not supported by legally sufficient evidence that
he constructively possessed heroin or intended to sell it (see
Penal Law §§ 220.16 [1]; 220.39 [1]). These contentions are
unpreserved, as defendant did not raise them in his general
motion for dismissal at the close of the People's case (see
People v March, 96 AD3d 1101, 1102 [2012], lv denied 20 NY3d 1063
[2013]). Nevertheless, his concomitant claim that the
convictions were against the weight of the evidence requires this
Court to assess the sufficiency of the evidence as to each
element of the crimes (see People v Tompkins, 107 AD3d 1037, 1038
[2013], lv denied 22 NY3d 1044 [2013]; People v Vargas, 72 AD3d
1114, 1116 [2010], lv denied 15 NY3d 758 [2010]).

As to the criminal sale convictions, the first controlled
buy was arranged by phone by the CI, who was searched and
provided with a body wire and buy money, and then – observed at
all times by a detective and an investigator – walked to
defendant's residence and spoke to him through a window, asking
for heroin. As seen on a police videotape, defendant opened the
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front door, stepped outside and looked up and down the street
before admitting the CI and closing the door. Inside, according
to the CI, defendant accepted the buy money, bent over near some
bicycles in a hallway, and handed two bags of what proved to be
heroin to the CI, warning him to watch out for police. The
investigator testified that he listened to this exchange through
the CI's body wire, but later discovered that the device had
malfunctioned, such that no audiotape was produced. During the
second purchase, defendant met the CI on the street near his
residence and, after accepting the buy money, told the CI that
the heroin was on the ground near them. From a nearby vehicle,
the investigator and detective observed a hand-to-hand exchange
between the men and saw the CI bend over to pick something up.
As before, the investigator listened to the transaction through
the CI's wire, but later learned that no audiotape was produced.
The observing officers attempted to videotape the transaction,
but were able to record only its aftermath, as defendant returned
to his nearby residence. Contrary to defendant's claim, neither
the absence of recorded proof of the two transactions nor
defendant's challenges to the CI's credibility precluded the jury
from finding that defendant "knowingly and unlawfully [sold] a
narcotic drug" on each occasion (Penal Law § 220.39 [1]).
Deferring to the jury's credibility assessments and viewing the
evidence in a neutral light, we are satisfied that the guilty
verdicts on the criminal sale counts are supported by the weight
of the evidence (see People v Tisdale, 103 AD3d 987, 988 [2013],
lvs denied 21 NY3d 1004, 1010 [2013]; People v Morris, 101 AD3d
1165, 1165-1166 [2012], lv denied 20 NY3d 1102 [2013]).

As to the criminal possession conviction, a detective
testified that he found eight glassine bags of heroin inside a
man's shoe in a common hallway during the November 2010 search of
defendant's residence. Defendant contends that the People failed
to establish that he constructively possessed this heroin, as it
was not found inside his apartment. However, constructive
possession is proven by demonstrating that a defendant exercised
dominion and control over the location where contraband was
found, and exclusive access is not required (see Penal Law §
10.00 [8]; People v Buchanan, 95 AD3d 1433, 1435 [2012], lvs
denied 22 NY3d 1039, 1043 [2013]; People v Echavarria, 53 AD3d
859, 862 [2008], lv denied 11 NY3d 832 [2008]; People v Elhadi,
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304 AD2d 982, 984 [2003], lv denied 100 NY2d 580 [2003]). The
testimony established that the hallway led to the first-floor
apartment where defendant resided with his paramour and several
young children, and also to a second-floor unit that was vacant
at that time. The hallway contained bicycles, toys and shoes;
the shoe in which the heroin was found was not admitted into
evidence, but the testimony established that it was a man's shoe
and that defendant was the only man living in the building.
Based on this evidence, the jury could rationally infer that
defendant constructively possessed the heroin found in the shoe
(see People v Bellamy, 118 AD3d 1113, 1114 [2014]). As for
defendant's claim that the People failed to prove his intent to
sell the heroin, the search team found defendant in a bedroom
that also contained mail addressed to him and clothing that
appeared to be his. In the same bedroom, they found what they
believed to be wrapping material for bundles or bricks of heroin,
$350 in cash in a candy container, and a prepaid cell phone that
was not registered to any named individual, but that bore the
same phone number that the CI had called to set up the controlled
buys. Viewing this evidence, as well as the evidence pertaining
to defendant's recent participation in heroin sales, in a neutral
light and weighing the relative probative force of the evidence
and the conflicting inferences to be drawn therefrom, we find
that the verdict was not against the weight of the evidence (see
People v James, 90 AD3d 1249, 1250 [2011], lv denied 18 NY3d 958
[2012]; People v Hawkins, 45 AD3d 989, 991 [2007], lv denied 9
NY3d 1034 [2008]; People v Smith, 309 AD2d 1081, 1082-1083
[2003]).

Finally, defendant claims that his sentence was harsh and
excessive. Although the sentence imposed was greater than one
offered to him before trial upon a rejected plea bargain, this
does not prove that he was punished for asserting his right to
trial where, as here, the record contains no evidence of
retaliation or vindictiveness (see People v Massey, 45 AD3d 1044,
1048 [2007], lv denied 9 NY3d 1036 [2008]). Considering the
pattern of drug-related activity reflected in defendant's current
convictions and his lengthy prior criminal history, we find no
abuse of discretion nor any extraordinary circumstances
warranting a reduction of the sentence in the interest of justice
(see People v Herring, 74 AD3d 1579, 1580 [2010]; People v
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McDonald, 43 AD3d 1207 [2007], lv denied 10 NY3d 867 [2008]).

Peters, P.J., Stein, Egan Jr. and Clark, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger
Clerk of the Court