People v Custodio (Harol)

[*1] People v Custodio (Harol) 2014 NY Slip Op 50302(U) Decided on March 5, 2014 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 5, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Torres, JJ
11-314.

The People of the State of New York, Respondent, - -

against

Harol Custodio, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Rita M. Mella, J.), rendered February 15, 2011, after a nonjury trial, convicting him of criminal possession of marijuana in the fifth degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Rita M. Mella, J.), rendered February 15, 2011, affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the court's credibility determinations. The police account of the street encounter between defendant and a known drug dealer (one Almonte) was not implausible. The proof established that defendant possessed the plastic bag containing marijuana, viz., that he exercised dominion and control over it (Penal Law § 10.00[8]) when he accepted the bag from Almonte and held it long enough to open it and inspect and smell its contents (see People v Sierra, 45 NY2d 56, 60-62 [1978]; see also People v Fecunda, 150 AD2d 600 [1989], lv denied 74 NY2d 809 [1989]).

Defendant failed to preserve for our review his further contentions that the trial court's Sandoval ruling was improper (see People v McCallister, 245 AD2d 184, 184-185 [1997], lv denied 91 NY2d 894 [1998]) and that the court erred in allowing a mid-trial amendment of the information as to the location of the incident (see generally People v Miller, 41 NY2d 857, 858 [1977]). With respect to the latter argument, we note that defendant did not seek dismissal of the information — either before trial or upon the court's final ruling on the issue at trial — on the basis of the (minor) misstatement therein regarding the situs of the crime, but instead sought, and ultimately obtained, a continuance of the trial to further investigate.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur [*2]
Decision Date: March 05, 2014