People v McCullough

People v McCullough 2009 NY Slip Op 08867 [68 AD3d 410] December 1, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

The People of the State of New York, Respondent,
v
James McCullough, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), and Chadbourne & Parke LLP, New York (Kimberly Zafran of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Craig A. Ascher of counsel), for respondent.

Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), rendered April 28, 2006, convicting defendant, after a jury trial, of criminal possession of marijuana in the first degree, and sentencing him, as a second felony drug offender, to a term of 4½ years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinations concerning credibility, including its rejection of defendant's testimony. In this controlled delivery case, defendant's course of conduct warranted the conclusion that he knew the boxes he received contained a large quantity of marijuana (see People v Reisman, 29 NY2d 278, 285 [1971]). The evidence clearly established that defendant was the intended recipient of the boxes, rather than merely accepting them for someone else in his capacity as building superintendent. Moreover, when a detective subsequently approached and identified himself, defendant immediately disclaimed ownership of the boxes, even though the detective had said nothing about the boxes, which defendant had already placed in the basement of the building. Concur—Tom, J.P., Sweeny, Moskowitz, Acosta and Abdus-Salaam, JJ.