People v Ringer

People v Ringer 2011 NY Slip Op 08806 Decided on December 6, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 6, 2011
Mazzarelli, J.P., Friedman, Catterson, Renwick, DeGrasse, JJ.
6231 3589/09

[*1]The People of the State of New York, Respondent,

v

Harold Ringer, Defendant-Appellant.




Roger Bennet Adler, New York, for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Caleb
Kruckenberg of counsel), for respondent.

Judgment, Supreme Court, New York County (Cassandra M. Mullen, J.), rendered November 23, 2010, as amended January 6, 2011, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a term of five years, unanimously affirmed.

Defendant did not preserve his challenge to the sufficiency of the evidence, and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. We also find that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). The evidence supports an inference of constructive possession (see People v Manini, 79 NY2d 561, 573 [1992]), and it does not support defendant's theory that a coworker may have secreted drugs in defendant's personal workstation.

The prosecutor's summation did not deprive defendant of a fair trial. Defendant objected to a particular remark as vouching for a witness. However, that remark was a permissible comment on a matter of credibility, and the prosecutor did not become an unsworn witness or interject her personal integrity (see People v Overlee, 236 AD2d 133, 144 [1997], lv denied 91 NY2d 976 [1998]; compare People v Moye, 52 AD3d 1 [2008], affd 12 NY3d 743 [2009]). Defendant objected to another remark as improperly suggesting that defendant had sold drugs to another person immediately before the police executed a search warrant at defendant's workplace. However, that was a reasonable inference from the evidence, and relevant to another charge in the indictment. Defendant's remaining challenges to the summation are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits.

The court erred in admitting evidence of two bags of cocaine found near defendant, since the People had stipulated at the suppression hearing that they did not intend to offer that evidence at trial (CPL 710.60[2][b]). Under the statute, such a stipulation has the effect of suppressing the [*2]evidence. Nevertheless, the error was harmless in light of the overwhelming evidence of defendant's guilt (see People v Crimmins, 36 NY2d 230 [1975]). The police found 88 bags of cocaine in defendant's workstation, and the additional bags added little or nothing to their case.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 6, 2011

CLERK