        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1004
KA 12-01406
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

FRANCISCO DEJESUS, DEFENDANT-APPELLANT.


LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Ronald
H. Tills, A.J.), rendered July 9, 1999. The judgment convicted
defendant, upon two jury verdicts, of criminal possession of a
controlled substance in the second degree, criminal possession of a
controlled substance in the third degree and criminally using drug
paraphernalia in the second degree (two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him,
upon two jury verdicts, of criminal possession of a controlled
substance (CPCS) in the second degree (Penal Law § 220.18 [former
(1)]), CPCS in the third degree (§ 220.16 [1]), and two counts of
criminally using drug paraphernalia in the second degree (§ 220.50
[2], [3]). We note that the People retried defendant on the CPCS
counts when the jury at the first trial could not reach a unanimous
verdict on those counts, and that Supreme Court entered a single
judgment covering both trials at the time of sentencing. We reject
defendant’s contention that the court erred in allowing the People to
read into evidence at the second trial the testimony of defendant’s
girlfriend from the first trial. CPL 670.10 (1) provides that a
witness’s testimony from a previous proceeding may be used in a
subsequent criminal proceeding “when at the time of such subsequent
proceeding the witness is unable to attend the same by reason of
death, illness or incapacity, or cannot with due diligence be found.”
After defendant’s girlfriend suddenly became unavailable in the middle
of the second trial, the People attempted to locate her but were
unsuccessful, and they thereafter established that they had exercised
the due diligence required by the statute (see CPL 670.10 [1] [a];
People v Arroyo, 54 NY2d 567, 569-570, cert denied 456 US 979; People
v Manning, 67 AD3d 1378, 1379-1380, lv denied 14 NY3d 803).
                                 -2-                          1004
                                                         KA 12-01406

     We reject defendant’s further contention that the evidence is
legally insufficient to establish that he constructively possessed
either the controlled substance or the drug paraphernalia. Where, as
here, “there is no evidence that defendant actually possessed [such
contraband], the People must establish that defendant exercised
dominion or control over the property by a sufficient level of control
over the area in which the contraband [was] found or over the person
from whom the contraband [was] seized” (People v Pichardo, 34 AD3d
1223, 1224, lv denied 8 NY3d 926 [internal quotation marks omitted];
see People v Manini, 79 NY2d 561, 573; see also Penal Law § 10.00
[8]). Here, we conclude that the evidence, viewed in the light most
favorable to the People (see People v Hines, 97 NY2d 56, 62, rearg
denied 97 NY2d 678; People v Williams, 84 NY2d 925, 926), is legally
sufficient to establish that defendant constructively possessed both
the controlled substance and the drug paraphernalia (see generally
People v Bleakley, 69 NY2d 490, 495).

     With respect to defendant’s contention that the court erred in
denying his motion for a mistrial when a lieutenant in the Buffalo
Police Department testified that defendant was a known drug dealer, we
note that “the decision to grant or deny a motion for a mistrial is
within the trial court’s discretion” (People v Ortiz, 54 NY2d 288,
292), and it cannot be said that the court abused its discretion in
denying defendant’s motion (see People v Ward, 107 AD3d 1605, 1606).
Moreover, the court promptly instructed the jury to disregard the
improper testimony, and the jury is presumed to have followed that
curative instruction (see People v Hawkes, 39 AD3d 1209, 1210, lv
denied 9 NY3d 845; People v Ochoa, 19 AD3d 302, 302, lv denied 5 NY3d
855). Defendant’s further contention that there was a Brady violation
based on the People’s failure to disclose that a prosecution witness
was the confidential informant who provided the information used to
obtain a warrant to search the premises where the contraband was found
is based on matters outside the record on appeal and thus may properly
be raised by way of a motion pursuant to CPL article 440 (see People v
Johnson, 88 AD3d 1293, 1294, following remittal 96 AD3d 1586, lv
denied 19 NY3d 1027; People v Ellis, 73 AD3d 1433, 1434, lv denied 15
NY3d 851). We have considered defendant’s remaining contentions and
conclude that they are without merit.




Entered:   October 4, 2013                      Frances E. Cafarell
                                                Clerk of the Court
