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

548
KA 10-00606
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GREEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CLIFFORD TULLOCH, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered February 25, 2010. The judgment convicted
defendant, after a nonjury trial, of criminal possession of a
controlled substance in the fifth degree.

     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 fifth degree (Penal Law § 220.06 [5]). Defendant
failed to preserve for our review his contention that the evidence is
legally insufficient to support the conviction except as it pertains
to the element of physical or constructive possession of the
controlled substance found on the floor of the back seat of the patrol
car in which defendant was transported to the police station (see
People v Gray, 86 NY2d 10, 19), and we conclude that the evidence is
legally sufficient to establish that element (see generally People v
Bleakley, 69 NY2d 490, 495). The bag of cocaine upon which the
conviction of possession is based was discovered immediately after
defendant was removed from that patrol car. The two arresting
officers testified at trial that they had thoroughly searched the back
of the patrol car a few hours prior to defendant’s arrest and had
found no contraband there, that defendant was the only person who had
been in the back seat following their earlier search and that, while
they were transporting defendant, they observed that he was making
strange movements in the back seat of the patrol car, including
crouching down and extending his legs. Given that testimony, we
conclude that there is a “valid line of reasoning and permissible
inferences” that could lead County Court to find that defendant
possessed the cocaine found in the patrol car (id.; see People v
Glover, 23 AD3d 688, 689, lv denied 6 NY3d 776; see generally People v
                                 -2-                           548
                                                         KA 10-00606

McCoy, 266 AD2d 589, 591-592, lv denied 94 NY2d 905).

     Viewing the evidence in light of the elements of the crime in
this nonjury trial (see People v Danielson, 9 NY3d 342, 349), we
reject defendant’s further contention that the verdict is against the
weight of the evidence (see generally Bleakley, 69 NY2d at 495).
Finally, we reject defendant’s contention that the sentence is unduly
harsh and severe, particularly in view of defendant’s lengthy criminal
history and the fact that the sentence imposed was below the maximum
sentence permitted by statute (see Penal Law § 70.70 [3] [b] [iii]).




Entered:   April 29, 2011                       Patricia L. Morgan
                                                Clerk of the Court
