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

1270
KA 11-02370
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TIMOTHY N. WALTERS, DEFENDANT-APPELLANT.


CHARLES T. NOCE, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John Lewis
DeMarco, J.), rendered July 29, 2011. The judgment convicted
defendant, upon a nonjury verdict, of criminal possession of a
controlled substance in the third degree, criminal possession of a
controlled substance in the fourth degree, criminally using drug
paraphernalia in the second degree and unlawful possession of
marihuana.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a nonjury verdict of criminal possession of a controlled
substance in the third degree (Penal Law § 220.16 [1]), criminal
possession of a controlled substance in the fourth degree (§ 220.09
[1]), criminally using drug paraphernalia in the second degree (§
220.50 [2]), and unlawful possession of marihuana (§ 221.05).
Defendant failed to preserve for our review his contention that a
certain individual at the house where defendant and the contraband
were found did not have authority to consent to the warrantless search
there (see generally People v Price, 112 AD3d 1345, 1345-1346; People
v Caballero, 23 AD3d 1031, 1032, lv denied 6 NY3d 846), and we decline
to exercise our power to address it as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]). Contrary to defendant’s
further contention, County Court (DeMarco, J.) properly concluded that
the individual voluntarily consented to the police entry into the
house (see People v Gonzalez, 39 NY2d 122, 127-128; People v McCray,
96 AD3d 1480, 1481, lv denied 19 NY3d 1104). Defendant’s contention
that the evidence subsequently obtained pursuant to the search warrant
should be suppressed as fruit of the poisonous tree thus lacks merit
(see generally Wong Sun v United States, 371 US 471, 484-485).
                                 -2-                          1270
                                                         KA 11-02370

      Contrary to defendant’s further contention, the court properly
considered the “drug factory” presumption (Penal Law § 220.25 [2])
with respect to the counts of criminal possession of a controlled
substance in the third and fourth degrees (see e.g. People v Pressley,
294 AD2d 886, 887, lv denied 98 NY2d 712; People v Riddick, 159 AD2d
596, 597, lv denied 76 NY2d 741; cf. People v Kims, ___ NY3d ___, ___
[Oct. 23, 2014]). Viewing the evidence in the light most favorable to
the People (see People v Contes, 60 NY2d 620, 621), we conclude that
it is legally sufficient to support the conviction (see generally
People v Bleakley, 69 NY2d 490, 495). Viewing the evidence in light
of the elements of the crimes in this nonjury trial (see People v
Danielson, 9 NY3d 342, 349), we also conclude that the verdict is not
against the weight of the evidence (see generally Bleakley, 69 NY2d at
495).

     We reject defendant’s further contention that the Molineux court
(Castro, A.J.) abused its discretion in permitting the People to
present evidence that defendant was present at a location where the
police previously made an undercover purchase of narcotics (see People
v Whitfield, 115 AD3d 1181, 1182, lv denied 23 NY3d 1044; People v
Ray, 63 AD3d 1705, 1706, lv denied 13 NY3d 838; People v Lowman, 49
AD3d 1262, 1263, lv denied 10 NY3d 936). Defendant’s contention that
reversal is required based upon a Rosario violation is also meritless.
“Reversal based upon a Rosario violation is necessary only when a
defendant demonstrates that he has been substantially prejudiced”
(People v Turner, 216 AD2d 931, 932, lv denied 86 NY2d 804; see People
v Comfort, 60 AD3d 1298, 1300, lv denied 12 NY3d 924) and, here,
defendant has not made the necessary showing of substantial prejudice
(see People v Gardner, 26 AD3d 741, 741, lv denied 6 NY3d 848; People
v Goston, 9 AD3d 905, 906-907, lv denied 3 NY3d 706).

     Viewing the evidence, the law and the circumstances of this case,
in totality and as of the time of representation, we conclude that
defendant received meaningful representation (see generally People v
Baldi, 54 NY2d 137, 147). Finally, the sentence is not unduly harsh
or severe.




Entered:   January 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
