People v. Paige

Rose, J.

Appeal from a judgment of the County Court of Franklin County (Main, Jr., J), rendered August 20, 2007, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the third degree and obstructing governmental administration in the second degree.

When three State Troopers seeking to execute an arrest warrant for Kimberly Laroe knocked on the door of her residence, defendant refused to let them in. The troopers then kicked the door open and arrested defendant for obstructing governmental administration in the second degree. Defendant was also charged with criminal possession of a controlled substance in *1194the third degree after the troopers found a significant amount of what proved to be cocaine in the bedroom. After a jury trial, defendant was convicted of both crimes and sentenced as a second felony offender to 10 years in prison for criminal possession of a controlled substance in the third degree and a concurrent term of one year of incarceration for obstructing governmental administration in the second degree. Defendant now appeals, and we affirm.

Defendant does not challenge the legitimacy of the arrest warrant, allowing us to presume that it was based on probable cause. Instead, he argues that entry was unlawful and the evidence seized from the bedroom should have been suppressed because the troopers failed to properly announce their authority and did not have a reasonable basis for the belief that Laroe was in her residence at the time. “We start with the proposition that ‘an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives where there is reason to believe the suspect is within’ ” (People v Murray, 267 AD2d 492, 494 [1999], lv denied 94 NY2d 923 [2000], quoting Payton v New York, 445 US 573, 603 [1980]; see CPL 120.80 [4]; People v Gerecke, 34 AD3d 1260, 1261 [2006], lv denied 7 NY3d 925 [2006]). Prior to entering, notice of the authority and purpose for entry must be given (see CPL 120.80 [4]). If there is a reasonable belief that the suspect is present within the residence and admittance is not allowed after the required notice is given, forcible entry is permitted (see CPL 120.80 [4], [5]). The reasonable belief standard is less stringent than the probable cause standard, it is based on an assessment of the totality of circumstances and an officer’s belief, if reasonable, need not be correct (see United States v Lovelock, 170 F3d 339, 343-344 [1999], cert denied 528 US 853 [1999]; United States v Lauter, 57 F3d 212, 215 [1995]).

Here, there was testimony that the troopers knocked on the door of Laroe’s residence at approximately 8:45 a.m. and identified themselves to defendant as State Police and as having an arrest warrant for Laroe. Defendant opened the door partway and, in response to State Police Investigator William Bronner’s questions, confirmed that it was Laroe’s residence. Defendant told Bronner that Laroe was not there and that she had gone to the City of Plattsburgh, Clinton County with her mother, but he was not sure where Laroe was. Defendant was only able to identify the mother as Victoria and could not identify the type of vehicle the mother drove. Defendant also told Bronner that Laroe did not have a vehicle. While being asked questions, defendant looked back over his shoulder into the apartment. Bron*1195ner twice told defendant that he believed Laroe was in the apartment, that they needed to execute the warrant and that defendant faced arrest if he did not allow them into the residence. Instead of again denying that Laroe was in the apartment, defendant twice responded that he would not let the troopers in. As Bronner then began to turn to go to his vehicle and get the warrant, defendant slammed the door. Given defendant’s inability to tell the troopers where Laroe was, his confirmation that it was her residence and his act of looking back over his shoulder into the apartment, Bronner believed that Laroe was in the residence and that defendant slammed the door to prevent the troopers from executing the warrant. Finding the door locked, the troopers then kicked it open, entered the apartment and placed defendant—who was headed toward the bedroom—in custody. Giving due deference to County Court’s credibility determinations (see People v Prochilo, 41 NY2d 759, 761 [1977]; People v Harper, 73 AD3d 1389, 1389 [2010]), we conclude that the evidence supports its finding that Bronner’s belief was reasonable, the entry into the residence was lawful and the motion to suppress the evidence found in the apartment was properly denied (see People v Barnhill, 34 AD3d 933, 934 [2006], lv denied 8 NY3d 843 [2007]; People v Ebron, 275 AD2d 490, 491 [2000], lv denied 95 NY2d 934 [2000]; People v Harrell, 208 AD2d 647 [1994], lv denied 85 NY2d 862 [1995]).

Defendant also challenges the legal sufficiency and weight of the evidence concerning both charges. At the close of the People’s case, however, defendant moved to dismiss the possession charge alone. Thus, his claim that the evidence was not legally sufficient to sustain the obstruction charge was not preserved for appellate review (see People v Finger, 95 NY2d 894, 895 [2000]; see generally People v Gray, 86 NY2d 10, 19 [1995]). Nevertheless, “ ‘we necessarily review the evidence adduced as to each of the elements of the crimes in the context of our review of defendant’s challenge regarding the weight of the evidence’ ” (People v Newkirk, 75 AD3d 853, 855 [2010], quoting People v Caston, 60 AD3d 1147, 1148-1149 [2009]; see People v Danielson, 9 NY3d 342, 348-349 [2007]). Upon our review of the evidence in a neutral light, weighing the relative probative force of the proof and according due deference to the jury’s credibility determinations, we find that, although a different verdict would not have been unreasonable, the jury’s conclusion that defendant intentionally interfered with the performance of an official function is not against the weight of the evidence (see Penal Law § 195.05; People v Baltes, 75 AD3d 956, 659 [2010]; People v Tarver, 188 AD2d 938 [1992], lv denied 81 NY2d 893 [1993]).

*1196With respect to the charge of criminal possession of a controlled substance in the third degree, the People were required to establish that defendant knowingly and unlawfully possessed more than one-half ounce of cocaine (see Penal Law § 220.16 [12]; § 220.00 [7]; Public Health Law § 3306 [schedule II] [b] [4]). Having pursued a theory of constructive possession, the People were required to show that defendant exercised dominion and control over the place where the cocaine was found (see Penal Law § 10.00 [8]; People v Manini, 79 NY2d 561, 573 [1992]; People v Sawyer, 23 AD3d 845, 846 [2005], lv denied 6 NY3d 852 [2006]). The evidence at trial established that after securing defendant in custody, the troopers searched the bedroom for Laroe and discovered, among other things, a clear plastic baggie containing what was later determined to be cocaine weighing 2.8 ounces in plain view on a nightstand. There was also evidence that defendant appeared to have recently woken up, he had been sleeping in the bed next to the nightstand, and pants containing defendant’s identification were found on a suitcase located next to the nightstand. Viewing this direct evidence in a light most favorable to the People, we conclude that it was legally sufficient to establish defendant’s dominion and control over the cocaine (see People v Young, 48 AD3d 901, 902-903 [2008]; People v Arrington, 31 AD3d 801, 803 [2006], lv denied 7 NY3d 865 [2006]; People v Elhadi, 304 AD2d 982, 983 [2003], lv denied 100 NY2d 580 [2003]). Upon our review of the evidence in a neutral light and giving deference to the jury’s opportunity to resolve issues of credibility, we also conclude that the conviction is not against the weight of the evidence (see People v Vargas, 72 AD3d 1114, 1118-1119 [2010], lv denied 15 NY3d 758 [2010]; People v Echavarria, 53 AD3d 859, 862 [2008], lv denied 11 NY3d 832 [2008]; People v Tarver, 292 AD2d 110, 114 [2002], lv denied 98 NY2d 702 [2002]).

Defendant’s contention that he was entitled to a circumstantial evidence charge is not preserved for review, as he did not request such a charge at trial (see People v Hampton, 64 AD3d 872, 877-878 [2009], lv denied 13 NY3d 796 [2009]; People v Sawyer, 23 AD3d at 847; People v Layman, 284 AD2d 558, 559 [2001], lv denied 96 NY2d 903 [2001]). Finally, in light of the large amount of cocaine involved, the scale and currency found with it, and defendant’s previous felony conviction resulting in incarceration, we find no abuse of discretion or extraordinary circumstances warranting a reduction of the sentence (see People v Manley, 70 AD3d 1125, 1125 [2010]; People v Patchen, 46 AD3d 1112, 1114-1115 [2007], lv denied 10 NY3d 814 [2008]).

Kavanagh and Egan Jr., JJ., concur.