State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: May 5, 2016 104917 

________________________________

THE PEOPLE OF THE STATE OF 

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

MICHAEL A. VICTOR JR.,

Appellant.

________________________________

Calendar Date: January 13, 2016

Before: Peters, P.J., Garry, Egan Jr., Rose and Clark, JJ.

__________

Ostrer & Associates, PC, Chester (Benjamin Ostrer of

counsel), for appellant.

Joseph A. McBride, District Attorney, Norwich (Michael J.

Genute of counsel), for respondent.

__________

Clark, J.

Appeal from a judgment of the County Court of Chenango

County (Sullivan, J.), rendered December 16, 2011, upon a verdict

convicting defendant of the crimes of criminal possession of a

controlled substance in the second degree, criminal possession of

a controlled substance in the third degree (two counts),

conspiracy in the second degree, criminal possession of a weapon

in the second degree (three counts) and criminal possession of a

weapon in the third degree (three counts). 

In January 2009, the Town of Norwich Police Department

commenced an investigation into the sale of narcotics and

centered its investigation around Tonya Jenkins and her daughter,

Currisa Jenkins (hereinafter Jenkins), defendant's paramour. 
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During the investigation, several controlled buys of cocaine and

heroin were made from Cassie Brooks, Tonya Jenkins and Jenkins. 

In March 2009, police obtained a search warrant for the residence

of Jenkins (hereinafter the residence), which, upon execution,

resulted in the arrest of Jenkins and defendant. Police searched

the residence and seized marihuana, cocaine, several thousand

dollars, multiple cell phones, a shotgun, ammunition, two cars,

keys to a storage unit and keys to a vehicle not found at the

residence. As a result, defendant was charged by indictment with

one count of criminal possession of a controlled substance in the

third degree. 

In April 2009, based upon the storage unit and car keys

seized during the search of the residence and upon recorded phone

calls made by Jenkins while she was in jail, police obtained and

executed a search warrant for a storage unit in the Town of

Norwich, Chenango County that was rented by Jenkins and seized a

Mercedes automobile, as well as a backpack containing narcotics,

drug paraphernalia, weapons and ammunition. Defendant was

subsequently charged in a second indictment with criminal

possession of a controlled substance in the second degree,

criminal possession of a controlled substance in the third

degree, conspiracy in the second degree, criminal possession of a

weapon in the second degree (three counts) and criminal

possession of a weapon in the third degree (three counts). The

indictments were thereafter consolidated. In 2010, Jenkins

pleaded guilty to criminal possession of a controlled substance

in the fifth degree and was released from jail on the condition

that she testify against defendant. Following a jury trial, at

which Jenkins testified, defendant was convicted as charged and

sentenced to an aggregate prison term of 34 to 39 years. 

Defendant now appeals.

Defendant argues that his cell phone was illegally seized

at the residence because the search warrant did not specifically

refer to cell phones as an item to be seized. We disagree. The

search warrant for the residence authorized, among other things,

the seizure of "any records . . . pertaining to any illicit

controlled substance activities or transactions" and "[a]ny

computers, central processing units, external and internal drives

and external and internal storage equipment or media, terminals
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or video display units . . . and any and all computing or data

processing software, or data including, but not limited to: hard

disks, floppy disks, cassette tapes, video cassette tapes,

magnetic tapes, integral ram or rom units, and any other

permanent or portable storage devices(s)." This language was

sufficiently particular to allow the police to identify a cell

phone as an item to be seized pursuant to the warrant, inasmuch

as a cell phone qualifies as a computer and/or storage device

capable of maintaining records "pertaining to . . . illicit

controlled substance activities or transactions" (People v

Church, 31 AD3d 892, 893-894 [2006], lv denied 7 NY3d 866 [2006];

see generally People v Nieves, 36 NY2d 396, 401 [1975]). 

Defendant also contends that the police did not listen to

or obtain Jenkins' recorded jail telephone conversations, which

formed the basis for the search warrant for the storage unit,

until after the warrant was executed and that County Court

improperly denied him a Alfinito/Franks hearing to challenge the

veracity of the affidavits submitted in support of the

application for that search warrant. The factual information

contained in Officer Michael Purdy's supporting deposition, which

was attached to the search warrant application, was based in part

upon a recorded jail telephone conversation between Jenkins and

another individual and set forth sufficient information to

support a reasonable belief that evidence of criminality would be

found in the storage unit (see People v Pinkney, 90 AD3d 1313,

1315-1316 [2011]; People v Church, 31 AD3d at 894). Defendant

relies on Purdy's testimony at a pretrial suppression hearing to

establish that he was entitled to an Alfinito/Franks hearing. 

Although Purdy acknowledged at that hearing that at least one of

Jenkins' recorded conversations was obtained and listened to

after the warrant was executed, Purdy testified that the

conversation referenced in his supporting deposition was listened

to prior to issuance of the warrant. As defendant failed to

satisfy his burden of proving that either the search warrant

application for the storage unit or Purdy's supporting deposition

contained false statements that were made knowingly,

intentionally or recklessly to establish probable cause, County

Court properly denied his request for an Alfinito/Franks hearing

(see People v Estrella, 48 AD3d 1283, 1285-1286 [2008], affd 10

NY3d 945 [2008], cert denied 555 US 1032 [2008]; People v Folk,
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44 AD3d 1095, 1097 [2007], lv denied 9 NY3d 1006 [2007]; People v

Richardson, 28 AD3d 1002, 1005 [2006], lv denied 7 NY3d 817

[2006]; People v Griffin, 234 AD2d 718, 720 [1996], lv denied 89

NY2d 1036 [1997]). 

Additionally, with the exception of defendant's conviction

on count 10 of the consolidated indictment, criminal possession

of a defaced weapon (see Penal Law § 265.02 [3]), we are

unpersuaded by defendant's contention that the verdict is against

the weight of the evidence. In conducting a weight of the

evidence review, this Court must first determine whether a

different conclusion would have been unreasonable and, if such

conclusion would not have been unreasonable, we then "weigh[] the

relative probative force of conflicting testimony and the

relative strength of conflicting inferences that may be drawn

from the testimony while viewing the evidence in a neutral light

and giving deference to the jury's credibility assessments"

(People v Gibson, 121 AD3d 1416, 1418 [2014] [internal quotation

marks omitted], lv denied 24 NY3d 1119 [2015]; see People v

Romero, 7 NY3d 633, 643 [2006]). 

Defendant specifically raises the issue of constructive

possession as to the drugs found in the shared residence and the

items found in the storage unit, including 299 grams of cocaine,

digital scales with white powder residue, a 9 millimeter Luger

pistol, TEC-9 model, a Colt Trooper .357 Magnum revolver and a

Jennings .22lr pistol. "Constructive possession can be

established by evidence that the defendant had dominion and

control over the weapon [or drugs] or the area in which it was

found" (People v Bellamy, 118 AD3d 1113, 1114 [2014], lv denied

25 NY3d 1159 [2014] [citation omitted]; see People v Dawson, 110

AD3d 1350, 1352 [2013], lv denied 23 NY3d 1035 [2014]). 

"Exclusive access, however, is not required to sustain a finding

of constructive possession" (People v Bellamy, 118 AD3d at 1114

[citation omitted]; see Penal Law § 10.00 [8]; People v Stewart,

95 AD3d 1363, 1364 [2012], lv denied 19 NY3d 1001 [2012]). 

"Constructive possession of the drugs [or weapons] at issue may

be established through circumstantial proof and 'any conflict in

the evidence regarding [a] defendant's dominion and control over

the [drugs and weapons] in question . . . create[s] issues of

witness credibility, and the jury's determination in that regard
-5- 104917 

must be accorded great deference'" (People v Crooks, 129 AD3d

1207, 1208-1209 [2015] [citation omitted], lv granted 26 NY3d 966

[2015], quoting People v McCoy, 302 AD2d 797, 797-798 [2003], lv

denied 100 NY2d 540 [2003]; see People v McLeod, 281 AD2d 746,

747 [2001], lv denied 96 NY2d 921 [2001]).

Here, the trial testimony given by Purdy, Jenkins, Brooks

and three other witnesses who observed defendant's drug activity,

along with the physical evidence recovered from the residence and

the storage unit established defendant's role in the drug

enterprise, as well as his possession of narcotics, illegal

weapons and ammunition. More particularly, with respect to

counts 1 through 4, Purdy testified that, upon execution of the

search warrant for the residence, police discovered roughly 2.88

grams of cocaine in a pair of pants belonging to defendant. In

addition, the testimony of Purdy and Jenkins established that

defendant acted in concert with Jenkins to possess over four

ounces of cocaine, a class A-II felony (see Penal Law § 220.18

[1]), and to store that cocaine in the storage unit, which

Jenkins rented at defendant's request so that both the drugs and

weapons would be removed from the residence (see People v Harris,

288 AD2d 610, 617-618 [2001], affd 99 NY2d 202 [2002]; People v

Rodriguez, 274 AD2d 826, 827-828 [2000], lv denied 95 NY2d 938

[2000]). Jenkins testified at length about how she and defendant

purchased the cocaine on a weekly basis in order to sell it for a

profit.

As to defendant's constructive possession of the loaded

firearms found in the storage unit (counts 5 through 7), Jenkins

testified that she had previously observed defendant in

possession of several of the seized weapons and saw him place the

weapons in the backpack found inside of the trunk of the

Mercedes. Jenkins' testimony in this regard was corroborated by

the testimony of Brooks, who stated that she had observed

defendant possess weapons, including some of the weapons found in

the storage unit, and of Paul Law, who testified that he had

observed defendant in possession of the 9 millimeter Luger

pistol, TEC-9 model. Furthermore, DNA evidence linked defendant

to one of the weapons and defendant stated, during his telephone

conversations in jail, that he wanted his brother to retrieve his

Mercedes from storage. Together, this evidence established that
-6- 104917 

defendant exercised dominion and control over the items found in

the storage unit (see People v Bellamy, 118 AD3d at 1114; People

v Robinson, 72 AD3d 1277, 1277-1278 [2010], lv denied 15 NY3d 809

[2010]). Thus, defendant's convictions on counts 1 through 7 are

not against the weight of the evidence. 

Defendant's convictions on counts 8 and 9 of the

consolidated indictment are similarly not against the weight of

the evidence. In addition to the foregoing evidence supporting

the convictions for criminal possession of a weapon in the second

degree, Purdy's testimony established that the operable 9

millimeter Luger pistol, TEC-9 model, was found in the storage

unit along with a large capacity ammunition feeding device

capable of holding 30 rounds and that, therefore, the firearm

constituted an assault weapon (count 8) (see Penal Law §§ 265.02

[7]; 265.00 [22] [c]). Purdy's testimony also established that

the serial number on the 9 millimeter Luger Pistol, TEC-9 model,

found in the storage unit had been "scratched, etched . . . or

ground off" (count 9). 

In contrast, however, no evidence was presented to

establish that the serial number on the Colt Trooper .357 Magnum

revolver had been defaced (count 10) (see Penal Law § 265.02

[3]). The photographs of the Colt Trooper .357 Magnum revolver

that were admitted into evidence do not reflect that the serial

number was defaced, and Purdy's testimony at trial did not

address the condition of the serial number on that revolver. 

Thus, defendant's conviction on count 10 of the consolidated

indictment must be reversed as against the weight of the

evidence.

Defendant raises issues as to County Court's handling of

three jury notes – specifically, Court exhibit Nos. 1, 3 and 5 –

and argues that the court's alleged mishandling of those notes

constituted mode of proceedings errors. We disagree with

defendant with respect to exhibits Nos. 1 and 3, but agree as to

exhibit No. 5. 

Court exhibit No. 1 stated, "replay phone calls." Upon

receiving the note, County Court stated, "We have a question. 

The jury wants to hear the tapes. My understanding is they want
-7- 104917 

to hear all the tapes. And in the courtroom is defendant,

attorneys, District Attorney, everybody is in agreement that

Deputy Chief Marsh will replay the tapes?" No objection was

lodged and, after the jury returned to the courtroom and the

jurors nodded yes in response to the court's query as to whether

they wanted to hear all of the recordings, the recorded telephone

calls were replayed. 

Thereafter, the jury sent out another note, marked as Court

exhibit No. 3, which stated, "Luger #5 # 9 assault." In the

presence of defendant, counsel and the jury, County Court

addressed the jury, stating, "The note from the jury says Luger,

No. 5 and No. 4 or No. 9, I can't tell for sure, assaults. Do

you want to see the exhibits? Do you want to have me read

definitions? Tell me what it is you'd like to have." Following

a brief response from juror No. 1, a request by the District

Attorney to approach the bench with defense counsel and an

ensuing "[o]ff-the-record discussion at the bench with defendant

present," the court informed the jury that counts 5, 8 and 9 all

related to the same Luger weapon and reread the jury charges for

those counts. Thereafter, an exchange took place between the

court and juror No. 1. The court eventually stated, "These are

conversations more appropriate for . . . the jury[ ] to discuss

in the privacy of . . . deliberations." Neither the People nor

defense counsel objected or discussed the foregoing exchange with

the court. 

Later, the jury sent out another note, marked as Court

exhibit No. 5, which stated that "we have reach[ed] agreement on

9 of the 10 charges # 8G 4NG." Shortly thereafter — apparently

while County Court was "discussing what to do with" Court exhibit

No. 5 off the record — another note, marked as Court exhibit No.

6, came from the jury stating, "Ready." Addressing the attorneys

and defendant outside the presence of the jury, County Court

"indicate[d] for the record" that it had received a note from the

jury stating, "We've reached agreement on nine out of the ten

charged."1 Defense counsel and the People agreed that if the

1 When County Court read this note aloud to the attorneys

outside the presence of the jury, it indicated, "Court Exhibit 5
-8- 104917 

jury had a complete verdict, they were "ready to go," but that

the court should send the jury back for further deliberations if

there was only a partial verdict. There was no further

discussion with respect to exhibit No. 5. 

CPL 310.30 provides that a deliberating jury may request

additional "instruction or information with respect to . . . any

. . . matter pertinent to [its] consideration of the case" and

that, "[u]pon such a request, the court must direct that the jury

be returned to the courtroom and, after notice to both the

[P]eople and counsel for the defendant, . . . must give such

requested information or instruction as the court deems proper"

(see People v O'Rama, 78 NY2d 270, 276 [1991]). "CPL 310.30 thus

imposes two separate duties on the [trial] court following a

substantive juror inquiry: the duty to notify counsel and the

duty to respond" (id.; see People v Kadarko, 14 NY3d 426, 429

[2010]). "[W]hen a trial court paraphrases a jury note or omits

a key term, thereby failing to provide counsel with meaningful

notice of the precise content of a substantive juror inquiry, a

mode of proceedings error occurs, and reversal is therefore

required even in the absence of an objection" (People v Nealon,

26 NY3d 152, 157 [2015]; see People v Walston, 23 NY3d 986, 989

[2014]; People v Tabb, 13 NY3d 852, 853 [2009]; People v Kisoon,

8 NY3d 129, 135 [2007]). "'Although not every violation of CPL

310.30 is immune from normal preservation principles, a failure

to apprise counsel about the specific contents of a substantive

note from a deliberating jury violates the fundamental tenants of

CPL 310.30 and qualifies as a mode of proceedings error,' which

does not require preservation" (People v Cotton, 127 AD3d 778,

779 [2015], lv denied 25 NY3d 1200 [2015], quoting People v

Silva, 24 NY3d 294, 299-300 [2014]).

With respect to Court exhibit Nos. 1 and 3, we find that,

although County Court did not follow the precise procedure

says 'We've reached agreement on nine out of the ten charged.'" 

Although the handwriting is difficult to discern, it appears,

based upon our review of exhibit No. 5, that the note actually

stated "nine out of the ten charges," rather than "nine out of

the ten charged." 
-9- 104917 

outlined in People v O'Rama (supra) and its progeny, the court's

particular deviations in handling these notes did not constitute

mode of proceedings errors, and, thus, in the absence of any

objection, the issues are unpreserved for our review (see People

v Nealon, 26 NY3d at 158-162). However, with respect to Court

exhibit No. 5, we conclude that County Court committed a mode of

proceedings error for which no objection was necessary (see

People v Lane, 134 AD3d 401, 402 [2015]). The court had an

affirmative obligation to read exhibit No. 5 verbatim so that the

parties had the opportunity to accurately analyze the jury's

question and frame intelligent suggestions for the court's

response (see People v Silva, 24 NY3d at 299; People v Kisoon, 8

NY3d at 134). The record is devoid of any information as to

whether defendant knew about the portion of exhibit No. 5 stating

"# 8G 4NG."2 Although the parties requested that the court

inquire as to whether the jury had reached a verdict and whether

it was "complete," we cannot speculate as to what defendant knew

about exhibit No. 5 (see People v Walston, 23 NY3d at 990). 

Furthermore, "we cannot assume that the omission was remedied at

an off-the-record conference" (People v Smith, 133 AD3d 548, 549

[2015]). Accordingly, as County Court committed a mode of

proceedings error as to exhibit No. 5, we must remit for a new

trial on counts 1 through 9 of the consolidated indictment.

Lastly, we address defendant's challenges to County Court's

Molineux and Sandoval rulings, as such issues may arise in the

context of a new trial. As for defendant's Molineux challenge,

County Court did not abuse its discretion in permitting evidence

of defendant's uncharged drug crimes. Such evidence was relevant

to establishing defendant's motive and intent, his overall scheme

or plan and to provide necessary background information and was

more probative than prejudicial (see People v Johnson, 106 AD3d

1272, 1274 [2013], lv denied 21 NY3d 1043 [2013]; People v

Buchanan, 95 AD3d 1433, 1436 [2012], lv denied 22 NY3d 1039

[2013]; People v Lynch, 63 AD3d 959, 961 [2009]). As for

defendant's challenge to County Court's Sandoval ruling, we note

2 The ambiguity of the notation is also of concern to this

Court. 
-10- 104917 

that the court allowed the People to fully inquire into

defendant's prior convictions for criminal impersonation and

unauthorized use of a motor vehicle and limited the People's

inquiry into defendant's prior convictions for resisting arrest

and attempted reckless endangerment in the first degree by

precluding any inquiry into the facts underlying those

convictions. Inasmuch as the prior crimes for which County Court

permitted a full inquiry were not too remote in time, were

dissimilar from the charged crimes and were probative of

defendant's credibility and willingness to put his interests

above that of the community, and given that County Court properly

balanced the probative value of defendant's prior convictions

against the risk of prejudice to defendant, we cannot say that

County Court's Sandoval ruling constituted an abuse of discretion

(see People v Sandoval, 34 NY2d 371, 376-378 [1974]; People v

Buckley, 299 AD2d 417, 418 [2002], lv denied 99 NY2d 580 [2003];

People v Williams, 243 AD2d 833, 837 [1997], lv denied 91 NY2d

931 [1998]). 

The balance of defendant's arguments do not require an

extended discussion. Defendant failed to preserve his argument

that the People violated the Communications Act of 1934 and we

decline to exercise our interest of justice jurisdiction with

respect thereto. Were we to review this claim, we would find it

unavailing. Defendant's remaining contentions are rendered

academic by our decision.

Peters, P.J., Garry, Egan Jr. and Rose, JJ., concur.
-11- 104917 

ORDERED that the judgment is reversed, on the law, count 10

of the consolidated indictment dismissed, and the matter remitted

to the County Court of Chenango County for a new trial on the

remaining nine counts of the consolidated indictment. 

ENTER:

Robert D. Mayberger

Clerk of the Court