TULLOCH, CLIFFORD, PEOPLE v ( 2011 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    548
    KA 10-00606
    PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GREEN, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    CLIFFORD TULLOCH, DEFENDANT-APPELLANT.
    THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
    OF COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Erie County Court (Thomas P.
    Franczyk, J.), rendered February 25, 2010. The judgment convicted
    defendant, after a nonjury trial, of criminal possession of a
    controlled substance in the fifth degree.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously affirmed.
    Memorandum: Defendant appeals from a judgment convicting him
    upon a nonjury verdict of criminal possession of a controlled
    substance in the fifth degree (Penal Law § 220.06 [5]). Defendant
    failed to preserve for our review his contention that the evidence is
    legally insufficient to support the conviction except as it pertains
    to the element of physical or constructive possession of the
    controlled substance found on the floor of the back seat of the patrol
    car in which defendant was transported to the police station (see
    People v Gray, 86 NY2d 10, 19), and we conclude that the evidence is
    legally sufficient to establish that element (see generally People v
    Bleakley, 69 NY2d 490, 495). The bag of cocaine upon which the
    conviction of possession is based was discovered immediately after
    defendant was removed from that patrol car. The two arresting
    officers testified at trial that they had thoroughly searched the back
    of the patrol car a few hours prior to defendant’s arrest and had
    found no contraband there, that defendant was the only person who had
    been in the back seat following their earlier search and that, while
    they were transporting defendant, they observed that he was making
    strange movements in the back seat of the patrol car, including
    crouching down and extending his legs. Given that testimony, we
    conclude that there is a “valid line of reasoning and permissible
    inferences” that could lead County Court to find that defendant
    possessed the cocaine found in the patrol car (id.; see People v
    Glover, 23 AD3d 688, 689, lv denied 6 NY3d 776; see generally People v
    -2-                           548
    KA 10-00606
    McCoy, 266 AD2d 589, 591-592, lv denied 94 NY2d 905).
    Viewing the evidence in light of the elements of the crime in
    this nonjury trial (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 Bleakley, 69 NY2d at 495).
    Finally, we reject defendant’s contention that the sentence is unduly
    harsh and severe, particularly in view of defendant’s lengthy criminal
    history and the fact that the sentence imposed was below the maximum
    sentence permitted by statute (see Penal Law § 70.70 [3] [b] [iii]).
    Entered:   April 29, 2011                       Patricia L. Morgan
    Clerk of the Court
    

Document Info

Docket Number: KA 10-00606

Filed Date: 4/29/2011

Precedential Status: Precedential

Modified Date: 10/8/2016