ROBINSON, BRANDON L., PEOPLE v ( 2016 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    688
    KA 08-01006
    PRESENT: CENTRA, J.P., LINDLEY, CURRAN, TROUTMAN, AND SCUDDER, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    BRANDON L. ROBINSON, DEFENDANT-APPELLANT.
    CHARLES T. NOCE, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
    COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Supreme Court, Monroe County (David
    D. Egan, J.), rendered April 3, 2008. The judgment convicted
    defendant, upon a jury verdict, of criminal possession of a controlled
    substance in the third degree, criminally using drug paraphernalia in
    the second degree and unlawful possession of marihuana.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously affirmed.
    Memorandum: Defendant appeals from a judgment convicting him
    upon a jury verdict of criminal possession of a controlled substance
    in the third degree (Penal Law § 220.16 [1]), criminally using drug
    paraphernalia in the second degree (§ 220.50 [2]), and unlawful
    possession of marihuana (§ 221.05). On June 28, 2007, officers from
    the Rochester Police Department executing a search warrant entered
    defendant’s apartment building and observed him standing in the first
    floor hallway next to a dryer. When defendant saw the officers, he
    ran into his apartment. The officers entered the apartment and found
    four men—defendant, Jasman Campbell, and two others—in a 10-foot-by-
    10-foot room with cocaine, marihuana, and several dozen small plastic
    bags. In addition, the officers found “two clear knotted bags”
    containing crack cocaine in the dryer and $460 in small bills on
    defendant’s person. The officers found no money on Campbell’s person,
    nor did they find a pipe or other equipment in the apartment such as
    would facilitate personal use of crack cocaine. Upon his arrest,
    defendant made a request of the officers, which the People later
    disclosed to defendant in a CPL 710.30 notice: “Please board up or
    lock up my apartment. All my possessions are inside.” Defendant,
    Campbell, and the two other men were to be tried jointly but, before
    that happened, Campbell pleaded guilty to criminal possession of a
    controlled substance in the third degree (Penal Law § 220.16 [1]) in
    exchange for the minimum sentence. At trial, Campbell testified for
    -2-                           688
    KA 08-01006
    the defense that he alone possessed and sold the drugs, and that he
    did not share the proceeds of the sales with defendant.
    We reject defendant’s contention that Supreme Court erred in
    admitting evidence that he possessed $460 in cash at the time of his
    arrest. It is well settled that where a defendant is charged with
    possession of a controlled substance with intent to sell, evidence of
    money found on the defendant’s person at the time of the arrest
    constitutes circumstantial evidence of defendant’s intent to sell (see
    People v Mosby, 237 AD2d 990, 990, lv denied 90 NY2d 861; see also
    People v Lowman, 49 AD3d 1262, 1263, lv denied 10 NY3d 936).
    Viewing the evidence in light of the elements of the crimes and
    the violation as charged to the jury (see People v Danielson, 9 NY3d
    342, 349), we reject defendant’s further contention that the verdict
    is against the weight of the evidence (see generally People v
    Bleakley, 69 NY2d 490, 495). We note, specifically, that the
    determination whether to discredit Campbell’s testimony was within the
    province of the jury, and its determination “should not be lightly
    disturbed” (People v Harris, 15 AD3d 966, 967, lv denied 4 NY3d 831).
    Finally, defendant failed to preserve for our review his
    contention that the court erred in permitting the People to use a
    peremptory challenge based on race. Defendant did not object to the
    challenge at trial, and he cannot rely on the objection of a
    codefendant’s attorney as a basis for preservation (see People v Neil,
    213 AD2d 1014, 1014, lv denied 86 NY2d 783). In any event,
    defendant’s contention lacks merit. The prospective juror’s distrust
    of and past involvement with the law enforcement community constituted
    an indisputably race-neutral, nonpretextual reason for the People’s
    use of a peremptory challenge (see generally People v Smocum, 99 NY2d
    418, 423).
    Entered:   September 30, 2016                   Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 08-01006

Filed Date: 9/30/2016

Precedential Status: Precedential

Modified Date: 10/7/2016