Opinion
229 KA 16–02332
06-28-2019
The PEOPLE of the State of New York, Respondent, v. Dyquann M. TUCKER, Defendant–Appellant.
BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a nonjury trial of criminal possession of a controlled substance in the second degree ( Penal Law § 220.18[1] ), we reject defendant's contention that the evidence is legally insufficient to establish his constructive possession of cocaine found in the basement of his parents' residence. During the execution of the search warrant for the residence, the police also found certain personal possessions in the basement, which was being used as a sleeping area. Those items included mail addressed to defendant at the residence searched, as well as a job application and prescriptions bearing defendant's name. Documents belonging to defendant were not found in any other sleeping area, nor did police recover items bearing any other family member's name from the basement. The evidence is thus legally sufficient to establish defendant's constructive possession of the cocaine (see People v. Holland , 126 A.D.3d 1514, 1515, 6 N.Y.S.3d 873 [4th Dept. 2015], lv denied 25 N.Y.3d 1165, 15 N.Y.S.3d 297, 36 N.E.3d 100 [2015] ; People v. Holley , 67 A.D.3d 1438, 1439, 888 N.Y.S.2d 832 [4th Dept. 2009], lv denied 14 N.Y.3d 801, 899 N.Y.S.2d 135, 925 N.E.2d 939 [2010] ; People v. Lopez , 112 A.D.2d 739, 739–740, 492 N.Y.S.2d 234 [4th Dept. 1985] ; see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). In addition, viewing the evidence in light of the elements of the crime in this nonjury trial (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see People v. Archie , 78 A.D.3d 1560, 1561–1562, 910 N.Y.S.2d 817 [4th Dept. 2010], lv denied 16 N.Y.3d 856, 923 N.Y.S.2d 418, 947 N.E.2d 1197 [2011] ; People v. Patterson , 13 A.D.3d 1138, 1139, 787 N.Y.S.2d 531 [4th Dept. 2004], lv denied 4 N.Y.3d 801, 795 N.Y.S.2d 177, 828 N.E.2d 93 [2005] ; see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Contrary to defendant's further contention, the search warrant was valid and Supreme Court thus properly refused to suppress physical evidence seized during its execution. The court properly determined that the People established the reliability of their confidential informant and the basis for his knowledge in satisfaction of the Aguilar–Spinelli test (see People v. Baptista , 130 A.D.3d 1541, 1541–1542, 13 N.Y.S.3d 759 [4th Dept. 2015], lv denied 27 N.Y.3d 991, 38 N.Y.S.3d 102, 59 N.E.3d 1214 [2016] ; People v. Henry , 74 A.D.3d 1860, 1861–1862, 902 N.Y.S.2d 742 [4th Dept. 2010], lv denied 15 N.Y.3d 852, 909 N.Y.S.2d 29, 935 N.E.2d 821 [2010] ; see generally People v. Bigelow , 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985] ). Further, suppression was not warranted based on the inclusion of a no-knock provision in the warrant, even if the provision was not requested in the application for the warrant, inasmuch as the evidence in the application was sufficient to justify the provision (see CPL 690.35[4][b] ; People v. Sherwood , 79 A.D.3d 1286, 1288–1289, 915 N.Y.S.2d 171 [3d Dept. 2010] ; People v. Rodriguez , 270 A.D.2d 956, 956–957, 706 N.Y.S.2d 293 [4th Dept. 2000], lv denied 95 N.Y.2d 870, 715 N.Y.S.2d 225, 738 N.E.2d 373 [2000] ).
Defendant also contends that the court erred in admitting in evidence an oral statement of defendant regarding his address for which no CPL 710.30 notice had been given. The statement at issue was defendant's response to a question about where he resided, and it was made to one of the principal investigators, who had executed a search warrant at the home of defendant's parents. As the People correctly concede, defendant's statement regarding his address was not pedigree information for which no CPL 710.30 notice was required (see generally People v. Slade , 133 A.D.3d 1203, 1206, 20 N.Y.S.3d 763 [4th Dept. 2015], lv denied 26 N.Y.3d 1150, 32 N.Y.S.3d 64, 51 N.E.3d 575 [2016] ) because, under the circumstances of this case, the investigator's question was likely to elicit an incriminating admission and had a "necessary connection to an essential element of [the possessory] crime[ ] charged" ( People v. Velazquez , 33 A.D.3d 352, 354, 822 N.Y.S.2d 65 [1st Dept. 2006], lv denied 7 N.Y.3d 929, 827 N.Y.S.2d 698, 860 N.E.2d 1000 [2006] ). The court thus erred in admitting the statement in evidence in the absence of a CPL 710.30 notice (see People v. Buza , 144 A.D.3d 1495, 1496–1497, 42 N.Y.S.3d 486 [4th Dept. 2016] ). We further conclude, however, that because the evidence against defendant is overwhelming and there is no reasonable possibility that the verdict would have been different had the statement been precluded, the error is harmless (see People v. Rupert , 136 A.D.3d 1311, 1312, 23 N.Y.S.3d 794 [4th Dept. 2016], lv denied 27 N.Y.3d 1075, 38 N.Y.S.3d 845, 60 N.E.3d 1211 [2016] ; People v. Roosevelt , 125 A.D.3d 1452, 1454, 3 N.Y.S.3d 544 [4th Dept. 2015], lv denied 25 N.Y.3d 1076, 12 N.Y.S.3d 628, 34 N.E.3d 379 [2015] ; see generally People v. Crimmins , 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).