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

411
KA 13-02225
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JEFFREY D. FINEOUT, DEFENDANT-APPELLANT.


THE GLENNON LAW FIRM, P.C., ROCHESTER (PETER J. GLENNON OF COUNSEL),
FOR DEFENDANT-APPELLANT.

KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (HARMONY A. HEALY OF
COUNSEL), FOR RESPONDENT.


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Jefferson County Court (Kim H. Martusewicz, J.), dated December 5,
2013. The order denied the motion of defendant pursuant to CPL
440.10.

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

     Memorandum: Defendant appeals from an order denying his CPL
article 440 motion to vacate the 2011 judgment convicting him
following a jury trial of, inter alia, criminal possession of a
controlled substance in the third degree (Penal Law § 220.16 [1]),
criminal possession of marihuana in the second degree (§ 221.25), and
two counts of criminally using drug paraphernalia in the second degree
(§ 220.50 [2], [3]). The charges against defendant stemmed from an
investigation of various individuals associated with a certain
apartment in Watertown (People v Fineout, 96 AD3d 1601, lv denied 19
NY3d 1025). Defendant contends that, despite finding that the People
committed Brady violations by failing to disclose that a witness had
been offered consideration to induce his testimony against defendant,
failing to correct that witness’s testimony to the contrary, and
compounding the error by emphasizing the misinformation on summation,
County Court erred in denying his motion on the ground that such
errors were harmless. We reject that contention.

     Even assuming, arguendo, that the court’s procedural ground for
denial of the motion pursuant to CPL 440.10 (3) (a) was unwarranted
because defendant was not afforded an adequate opportunity to develop
a factual record for appellate review on direct appeal (see generally
People v Wagstaffe, 120 AD3d 1361, 1363, lv denied 25 NY3d 1173), we
conclude that, in addressing the merits (see CPL 440.30 [2]), the
                                 -2-                           411
                                                         KA 13-02225

court properly determined that the Brady violations constituted
harmless error inasmuch as there is no reasonable possibility that
they might have contributed to the verdict (see People v Pressley, 91
NY2d 825, 827; People v Rivera, 70 AD3d 1484, 1484, lv denied 15 NY3d
756). Here, there was overwhelming evidence that defendant, who was
discovered sleeping on the couch in the subject apartment, had
constructive possession of the drugs and paraphernalia, i.e., that he
exercised dominion and control over the area in which the contraband
was found (see generally People v Farmer, 136 AD3d 1410, 1411).
Indeed, there was evidence that defendant resided at the apartment,
had a significant role in facilitating drug activity for one of the
individuals under investigation, conducted drug transactions out of
the apartment and was arranging a sale on his cell phone just prior to
his arrest, and was entrusted to remain alone in the apartment
containing large amounts of various drugs, packing materials, and
other equipment, much of which was in plain view, as well as a
significant amount of money (see People v Bundy, 90 NY2d 918, 920;
People v Doleo, 261 AD2d 194, 195, lv denied 93 NY2d 1017; People v
Bernard, 237 AD2d 210, 210, lv denied 90 NY2d 855; see also People v
McLeod, 281 AD2d 746, 747, lv denied 96 NY2d 921). Inasmuch as the
overwhelming evidence of defendant’s guilt was established by the
testimony of other witnesses, the verdict did not turn solely or even
predominately on the testimony of the subject witness (see People v
Johnson, 107 AD3d 1161, 1166, lv denied 21 NY3d 1075; People v
Phillips, 55 AD3d 1145, 1149, lv denied 11 NY3d 899; People v Tutt,
305 AD2d 987, 987, lv denied 100 NY2d 588). As the court properly
observed, a significant portion of the subject witness’s testimony was
cumulative and, inasmuch as the relevant issue was defendant’s
constructive possession rather than whether he had personally brought
the drugs into the apartment at some earlier time, we reject
defendant’s contention that the witness’s testimony was critical to
the verdict because he was the only individual to “directly link”
defendant to the drugs.




Entered:   May 6, 2016                          Frances E. Cafarell
                                                Clerk of the Court
