People v. Pinchback

Appeal by defendant from a judgment of the Supreme Court, Queens County (Fisher, J.), rendered October 31, 1990, convicting him of criminal possession of a weapon in the third degree and criminally using drug paraphernalia, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial of that branch of the defendant’s omnibus motion which was to suppress physical evidence seized pursuant to a search warrant. Ordered that the judgment is affirmed. The defendant was arrested in his parents’ home, located at 130-12 Inwood Street, Queens, when police officers assigned to the Queens Narcotics District executed a search warrant covering the subject premises and recovered weapons and drug paraphernalia. During the course of the search, the defendant made inculpatory statements indicating that the contents of two safes in the basement belonged to him. Additionally, the defendant stated that he slept in a basement bedroom, a search of which revealed the presence of a revolver. The defendant was arrested and charged with, among other things, criminal possession of a weapon in the third degree as well as criminally using drug paraphernalia in the second degree, relating to glassine envelopes recovered from the safes. We find that the affidavit of the police officer submitted in support of the application for a search warrant contained sufficient facts to permit the issuing Judge to conclude that probable cause existed to issue a warrant for the search of the premises located at 130-12 Inwood Street. The officer’s affidavit, which was based on his personal observations of the premises in question, stated that on September 13, 1989, the defendant’s brother engaged in apparent narcotics sales on the corner of Inwood Street and Sutter Avenue, went to [541] 130-12 Inwood Street where he entered the house briefly, and then returned to the intersection of Sutter Avenue and Inwood Street. There, the defendant’s brother was seen to place a clear plastic bag next to some garbage near the northeast corner of that intersection. From time to time, the defendant’s brother returned to that point to retrieve small, brown, plastic baggies for sale to customers. The affidavit further stated that on September 25, 1989, on the corner of Inwood Street and Sutter Avenue, an undercover officer engaged in a drug transaction with an individual named "Kahlif’. Thereafter, the defendant’s brother arrived at the intersection where he was handed a sum of United States currency by Kahlif as well as other individuals seen selling on or near the intersection. The defendant’s brother then jogged to 130-12 Inwood Street, with cash in hand, and entered the premises. On another occasion, the affiant observed an individual named David Hornsby as he made an apparent drug sale to an individual at the intersection of Inwood Street and Sutter Avenue. Thereafter, Hornsby left that intersection, went to one of the automobiles parked in the driveway of 130-12 Inwood Street, removed a brown paper bag from the driver’s side, returned to the intersection and placed the brown bag in the gas tank flap of a white van parked nearby. Hornsby continued his apparent sales. We find that this information presented the issuing Judge with "information sufficient to support a reasonable belief that * * * evidence of a crime [might] be found” at the premises located at 130-12 Inwood Street and that it was more probable than not that criminal activity was taking place at the place to be searched (People v Bigelow, 66 NY2d 417, 423; see, People v Mercado, 68 NY2d 874). As a result, we find there was probable cause to issue the search warrant (see, People v Smith, 145 AD2d 517). Moreover, viewing the evidence in the light most favorable to the People (see, People v Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. The testimony of the police officers indicated that the defendant knew the combination to the safes where the drug paraphernalia was found and, upon opening the safes, claimed ownership of the contents. Additionally, the officers testified that the defendant stated that he slept in the basement room where the weapon was ultimately recovered. Given this testimony, the jury could reasonably have found. the items seized to have been within the defendant’s dominion and control (see, People v Dawkins, 136 AD2d 726). Mere access by others to the area does not preclude a [542] finding of constructive possession (see, People v Diaz, 41 AD2d 382, affd 34 NY2d 689; People v Torres, 68 NY2d 677). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15 [5]). Additionally, we disagree with the defendant’s contention that he was denied the effective assistance of counsel. "In reviewing claims of ineffective assistance care must be taken to 'avoid * * * confusing true ineffectiveness [of counsel] with mere losing tactics’ ” (People v Satterfield, 66 NY2d 796, 798, quoting from People v Baldi, 54 NY2d 137, 146). Defense counsel’s decision to refrain from objecting to inadmissible inculpatory statements made by the defendant was explained on the record as being part of counsel’s trial strategy (see, People v Torres, 183 AD2d 862). Additionally, defense counsel attempted to controvert the search warrant, vigorously cross-examined prosecution witnesses, and argued that the weapons and drug paraphernalia were not under the defendant’s dominion and control. Furthermore, defense counsel delivered appropriate opening and closing statements. Thus, there is no indication in the record that the defense counsel failed to act in a competent and professional manner (see, People v Hinds, 183 AD2d 848). The defendant’s remaining contention regarding the court’s failure to give a circumstantial evidence charge is unpreserved for appellate review (see, CPL 470.05 [2]), and, in any event, is without merit (see, People v Thomas, 162 AD2d 822). Harwood, J. P., Rosenblatt and Copertino, JJ., concur.