Opinion
1343 KA 14-01024.
11-17-2017
The PEOPLE of the State of New York, Respondent, v. Donte S. TWILLIE, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of Counsel), for Respondent.
PRESENT: WHALEN, P.J., PERADOTTO, DeJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of marihuana in the third degree ( Penal Law § 221.20 ). During a traffic stop of defendant's vehicle, a police officer found "two large sandwich bags" of marihuana in a shoe box on the back seat, nine "pill-sized ziplock baggies" of marihuana in a black backpack on the floor of the back seat on the passenger's side, a digital scale between the driver's seat and the center console, and an additional pill-sized bag of marihuana and about $1,500 in cash on defendant's person. The total weight of the marihuana was 8.56 ounces, and the amounts found in different places were not weighed separately. The passenger in the vehicle testified at trial as a defense witness that the marihuana in the backpack was his alone, and that it weighed four to eight ounces.
Defendant contends that the verdict is against the weight of the evidence with respect to whether he constructively possessed the marihuana that was found in the back seat, and therefore whether he possessed more than eight ounces of marihuana (see Penal Law § 221.20 ). We reject that contention. The circumstances of the stop, including defendant's possession of a large sum of cash and the presence and position of the scale in his vehicle, "support[ ] the conclusion that defendant exercised dominion and control, at least jointly with [the passenger], over the [marihuana in the back seat]" ( People v. Diaz, 100 A.D.3d 446, 447, 954 N.Y.S.2d 20 [1st Dept.2012], affd. 24 N.Y.3d 1187, 3 N.Y.S.3d 745, 27 N.E.3d 459 [2015] ; see § 10.00[8]; People v. Jones, 72 A.D.3d 452, 452, 900 N.Y.S.2d 8 [1st Dept.2010], lv. denied 15 N.Y.3d 806, 908 N.Y.S.2d 166, 934 N.E.2d 900 [2010] ; People v. Gadsden, 192 A.D.2d 1103, 1103, 597 N.Y.S.2d 256 [4th Dept.1993], lv. denied 82 N.Y.2d 718, 602 N.Y.S.2d 815, 622 N.E.2d 316 [1993] ). The jury was entitled to discredit the exculpatory testimony of defendant's passenger (see People v. Robinson, 142 A.D.3d 1302, 1303–1304, 38 N.Y.S.3d 312 [4th Dept.2016], lv. denied 28 N.Y.3d 1126, 51 N.Y.S.3d 23, 73 N.E.3d 363 [2016] ; People v. Downs, 21 A.D.3d 1414, 1414–1415, 801 N.Y.S.2d 448 [4th Dept.2005], lv. denied 5 N.Y.3d 882, 808 N.Y.S.2d 585, 842 N.E.2d 483 [2005] ), particularly given that he was facing a murder charge at the time of defendant's trial and could be viewed as having "nothing to lose" by admitting to misdemeanor marihuana possession ( People v. Feliciano, 240 A.D.2d 256, 257, 658 N.Y.S.2d 307 [1st Dept.1997], lv. denied 90 N.Y.2d 1011, 666 N.Y.S.2d 106, 688 N.E.2d 1389 [1997] ; see § 221.15). Viewing the evidence in light of the elements of the crime as charged to the jury (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 a different verdict would not have been unreasonable, but that the jury nonetheless "did not fail to give the evidence the weight it should be accorded" ( People v. Friello, 147 A.D.3d 1519, 1520, 47 N.Y.S.3d 620 [4th Dept.2017], lv. denied 29 N.Y.3d 1031, 62 N.Y.S.3d 300, 84 N.E.3d 972 [2017] ; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.