Opinion
KA 00-01282
October 1, 2002.
Appeal from a judgment of Erie County Court (Drury, J.), entered June 16, 1999, convicting defendant after a jury trial of, inter alia, criminal possession of a controlled substance in the third degree (two counts).
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MICHAEL C. WALSH OF COUNSEL), FOR DEFENDANT-APPELLANT.
MANUEL PEREZ, DEFENDANT-APPELLANT PRO SE.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (PAUL J. WILLIAMS, III, OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., WISNER, HURLBUTT, SCUDDER, AND BURNS, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
On appeal from a judgment convicting him after a jury trial of two counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16, [12]) and two counts of criminal use of drug paraphernalia in the second degree (§ 220.50 [2]), defendant contends that County Court erred in denying his motion to suppress physical evidence obtained during the execution of a search warrant on the ground that the search warrant was not issued upon probable cause. We disagree. The court that issued the search warrant heard the testimony of a confidential informant detailing his controlled buy of cocaine at defendant's residence. In addition, the warrant application included the affidavit of a police officer who conducted surveillance of the residence on the date of the controlled buy and on other occasions and who observed activity at the residence consistent with its use for the sale of drugs. The confidential informant's testimony and the police officer's affidavit established probable cause to believe that cocaine would be found at the residence ( see People v. Middleton, 283 A.D.2d 663, 665, lv denied 96 N.Y.2d 706; People v. Rodriguez, 226 A.D.2d 1102, lv denied 88 N.Y.2d 941; see also People v. Joshua, 286 A.D.2d 343, 344, lv denied 97 N.Y.2d 706; People v. Abron, 278 A.D.2d 919, lv denied 96 N.Y.2d 797) . Nor is there merit to defendant's contention that the verdict is against the weight of the evidence because "the evidence overwhelmingly establishes defendant's actual or constructive possession of the drugs [and drug paraphernalia]" ( People v. Christian, 248 A.D.2d 960, 961, lv denied 91 N.Y.2d 1006; see People v. Morales, 248 A.D.2d 731, 732, lv denied 92 N.Y.2d 902; see generally People v. Bleakley, 69 N.Y.2d 490, 495). We further conclude that the sentence is neither unduly harsh nor severe.
Contrary to the contention of defendant in his pro se supplemental brief, the court's Ventimiglia rulings were proper. The evidence obtained from the police surveillance of defendant's residence prior to the date of the charged crimes and the cocaine residue discovered on one of the scales seized from defendant's residence were relevant to the issue of intent to sell ( cf. People v. Maldonado, 220 A.D.2d 212, 212-213, lv denied 87 N.Y.2d 904; People v. Mosiurchak, 157 A.D.2d 1023, 1025-1026, lv denied 75 N.Y.2d 968). Further, the testimony of one police officer that his office would initiate investigations of suspected drug houses when it received complaints concerning a particular person or location did not violate the court's pretrial Ventimiglia ruling that the People could not introduce evidence of the civilian complaints that the police received concerning defendant's residence. In any event, any error in the admission of that isolated comment is harmless ( see generally People v. Crimmins, 36 N.Y.2d 230, 241-242).
Defendant failed to preserve for our review his contentions that he was denied a fair trial by prosecutorial misconduct during summation and that the court erred in its charge to the jury because he failed to object to the alleged misconduct and the jury charge ( see People v. Kaufman, 288 A.D.2d 895, 896, lv denied 97 N.Y.2d 684; see also People v. Folger, 292 A.D.2d 841, 842). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( see CPL 470.15 [a]).