People v. Blalark ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: March 12, 2015 105286
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
DAQUAN BLALARK,
Appellant.
________________________________
Calendar Date: January 13, 2015
Before: Peters, P.J., Rose, Egan Jr. and Clark, JJ.
__________
James P. Milstein, Public Defender, Albany (Theresa M.
Suozzi of counsel), for appellant.
P. David Soares, District Attorney, Albany (Steven M. Sharp
of counsel), for respondent.
__________
Peters, P.J.
Appeal from a judgment of the Supreme Court (Lamont, J.),
rendered July 17, 2012 in Albany County, upon a verdict
convicting defendant of the crimes of criminal possession of a
controlled substance in the third degree, criminal possession of
a controlled substance in the fourth degree and unlawful
possession of marihuana.
While driving his vehicle in the City of Albany, defendant
was stopped by three law enforcement officers. Following the
officers' recovery of a bag of crack cocaine in the police
vehicle where defendant was held during the stop, defendant was
transported to the police station where a strip search revealed a
quantity of marihuana on his person. Defendant was charged with
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criminal possession of a controlled substance in the third and
fourth degrees and unlawful possession of marihuana. After a
jury trial, he was convicted as charged and sentenced as a second
felony offender to an aggregate prison term of seven years,
followed by three years of postrelease supervision. He appeals,
and we affirm.
Defendant contends that the verdict is not supported by
legally sufficient evidence and is against the weight of the
evidence. As an initial matter, defendant's general objections
at the close of proof did not preserve his argument that the
evidence is legally insufficient to establish that he possessed,
with the intent to sell, the crack cocaine recovered from the
police vehicle (see People v Hawkins, 11 NY3d 484, 492 [2008];
People v Valverde, 122 AD3d 1074, 1075 [2014]). However, because
a different verdict would not have been unreasonable, we evaluate
whether each element of the crimes charged was proven beyond a
reasonable doubt in assessing defendant's claim that the verdict
is against the weight of the evidence (see People v Danielson, 9
NY3d 342, 348 [2007]; People v Rankin, 117 AD3d 1231, 1232
[2014], lvs denied 24 NY3d 1087 [2014]). As relevant here, a
conviction for criminal possession of a controlled substance in
the third degree requires proof that the defendant "knowingly and
unlawfully possesse[d] . . . a narcotic drug with intent to sell
it" (Penal Law § 220.16 [1]; see People v Kramer, 118 AD3d 1040,
1043 [2014]). Criminal possession of a controlled substance in
the fourth degree requires proof that the defendant "knowingly
and unlawfully possesse[d] . . . a narcotic drug . . . [with] an
aggregate weight of one-eighth ounce or more" (Penal Law § 220.09
[1]; see People v Reid, 12 AD3d 719, 720 [2004], lv denied 4 NY3d
767 [2005]).
The evidence at trial established that Josiah Jones, a
sergeant with the Albany Police Department, together with John
Regan and Kevin Meehan, both detectives with the department, were
driving in a police vehicle when Jones recognized defendant
driving past them. Acting on the belief that defendant's
driver's license was suspended, the officers pulled defendant
over. Defendant did not stop his vehicle immediately, but
started to pull over and then pulled out into the road several
times before ultimately stopping. Upon approaching the vehicle,
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all three law enforcement officers smelled marihuana, prompting
them to remove defendant from his car and conduct two cursory
pat-down searches. Defendant was then placed in the rear seat of
the police vehicle. During the approximately 15 minutes that
defendant was held there, Jones observed him "moving around a
lot" and "bobbing his shoulders up and down with his handcuffed
hands by his back." Upon removing defendant from the police
vehicle, Regan and Meehan recovered a plastic bag containing
three individual plastic bags – which together held over an
eighth of an ounce of crack cocaine – that was "tucked up"
"underneath the section of the seat where [defendant's] back
would have been." Meehan testified that, although the air was
chilly on the October evening of the incident and the bag was not
located near any heat source within the police vehicle, it was
noticeably warm to the touch.
While defendant contends that the cocaine could have been
stashed in the police vehicle by a prior suspect transported just
before his arrest, the testimony of Jones and Regan established
that the prior suspect was searched before being placed in the
back seat of the police vehicle, rode in a different part of the
back seat from defendant and was flanked by Meehan and Regan.
Furthermore, Meehan testified that he conducted a thorough
inspection of the back seat of the police vehicle just prior to
defendant's arrest, which included lifting up the back seat and
looking underneath it with a flashlight. Evaluating the evidence
in a neutral light and according deference to the jury's
credibility determinations (see People v Danielson, 9 NY3d 342,
348-349 [2007]; People v Bleakley, 69 NY2d 490, 495 [1987]), we
find that defendant's convictions for criminal possession of a
controlled substance were not against the weight of the
evidence.1
1
To the extent that defendant argues that the People
"failed to meet their burden of proof . . . regarding each and
every [c]ount charged," we further find that his conviction for
unlawful possession of marihuana is likewise supported by the
weight of the evidence in light of his concession that police
found marihuana on his person during a strip search.
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Similarly without merit is defendant's contention that
Supreme Court erred in denying his motion to suppress, based on
the alleged lack of reasonable suspicion for the stop. Jones
testified at the suppression hearing that he was aware that
defendant had a suspended license and had mentioned it to
defendant on more than one prior occasion, to give defendant an
opportunity to correct the problem. He further detailed that,
approximately one week prior to defendant's arrest, Jones had run
defendant's license and confirmed that it was still suspended.
Although Jones did not have a computer in the vehicle he was
driving to confirm the status of defendant's license prior to the
stop, he nonetheless possessed reasonable suspicion that
defendant was driving with a suspended license (see People v
Kulk, 103 AD3d 1038, 1038 [2013], lv denied 22 NY3d 956 [2013];
see also People v Haynes, 35 AD3d 1212, 1212 [2006], lv denied 8
NY3d 946 [2007]; People v Gales, 187 AD2d 606, 606 [1992], lv
denied 81 NY2d 788 [1993]).
Defendant's contention that Supreme Court abused its
discretion in denying his motion to set aside the verdict based
on juror misconduct, without a hearing, is similarly unavailing.
In support of the motion, defense counsel submitted a sworn
affirmation with attached printouts of electronic communications
from a juror who alleged that racial comments were made during
deliberations. However, such proof was insufficient to warrant a
hearing (see People v Davis, 83 AD3d 1210, 1213 [2011], lv denied
17 NY3d 794 [2011]; People v Johnson, 54 AD3d 636, 636 [2008],
lvs denied 11 NY3d 898 [2008], 12 NY3d 759 [2009]), as it relied
on hearsay from unsworn statements by the alleged juror, who
ultimately refused to swear to or further discuss his allegations
(see People v De Lucia, 15 NY2d 294, 296 [1965], cert denied 382
US 821 [1965]; People v Camacho, 293 AD2d 876, 876 [2002], lvs
denied 98 NY2d 729, 731 [2002]). Finally, we find no abuse of
discretion or extraordinary circumstances warranting a reduction
in defendant's sentence (see People v Brock, 107 AD3d 1025, 1029
[2013], lv denied 21 NY3d 1072 [2013]; People v James, 90 AD3d
1249, 1251 [2011], lv denied 18 NY3d 958 [2012]).
Rose, Egan Jr. and Clark, JJ., concur.
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ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court