People v. Bowes

206 A.D.3d 1260

170 N.Y.S.3d 334

The PEOPLE of the State of New York, Respondent,

v.James T. BOWES, Appellant.

111217

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: April 26, 2022

Decided and Entered: June 16, 2022

Dennis J. Lamb, Troy, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (Nathan M. Bloom of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Aarons, Reynolds Fitzgerald and Ceresia, JJ.

MEMORANDUM AND ORDER

Lynch, J. Appeal from a judgment of the County Court of Chemung County (Rich Jr., J.), rendered March 1, 2019, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the second degree and unlawful manufacture of methamphetamine in the third degree.

In May 2018, defendant and Albert Dunkle were walking on a trail in Chemung County that was known as a location where individuals would discard the remnants of materials used to make methamphetamine. Two police officers who were patrolling the area observed Dunkle "cradling" a plastic bag in his arms that was similar to the ones previously found in that location. Upon inquiry, Dunkle informed the police that the bag contained a one-liter soda bottle, a container known to be used for manufacturing methamphetamine through the one-pot cooking method.¹ Upon observing a white/blue substance inside the bottle, the officers placed defendant and Dunkle under arrest. The bottle was later tested and found to contain over two ounces of methamphetamine.

Thereafter, defendant was charged by indictment with criminal possession of a controlled substance in the second degree and unlawful manufacture of methamphetamine in the third degree. Following a combined Mapp/Huntley hearing, County Court denied defendant's motion to suppress his statements to law enforcement as the product of an illegal stop. A jury trial ensued, after which defendant was convicted as charged. He was sentenced to concurrent prison terms of six years on the criminal possession conviction, to be followed by five years of postrelease supervision, and one year on the unlawful manufacture of methamphetamine conviction. Defendant appeals.

Defendant contends that the verdict is legally insufficient and against the weight of the evidence, maintaining that the People's proof did not support convictions on the charges upon a theory of accessorial liability. As relevant here, "[a] person is guilty of criminal possession of a controlled substance in the second degree when he or she knowingly and unlawfully possesses ... one or more preparations, compounds, mixtures or substances containing methamphetamine, its salts, isomers or salts of isomers ... [with] an aggregate weight of two ounces or more" ( Penal Law § 220.18[2] ). "A person is guilty of unlawful manufacture of methamphetamine in the third degree when he or she possesses at the same time and location, with intent to use, or knowing that another intends to use each such product to unlawfully manufacture, prepare or produce methamphetamine ... [a] precursor ... mixed together with a chemical reagent or solvent" ( Penal Law § 220.73[3][a] ).

In New York, "there is no legal distinction between criminal liability as a principal or as an accessory" to a crime ( People v. Spencer, 169 A.D.3d 1268, 1272, 95 N.Y.S.3d 435 [2019], lvs denied 34 N.Y.3d 935, 938, 109 N.Y.S.3d 727, 133 N.E.3d 430, 431 [2019]). Accordingly, the People may proceed upon a theory of accomplice liability to hold a defendant culpable for the acts of another "when [he or she], acting with the mental culpability required for the commission thereof, ... solicits, requests, commands, importunes or intentionally aids such person to engage in such conduct" ( Penal Law § 20.00 ).

At trial, Patrick Pirozzolo, a deputy with the Chemung County Sheriff's Office, testified that, on the evening of May 17, 2018, he was patrolling a section of the Catherine Valley Trail in Chemung County where "several methamphetamine dumpsites" had been located in the preceding weeks. Pirozzolo, who was trained in identifying one-pot methamphetamine labs, noted that the dumpsites generally consisted of one-liter soda bottles kept in plastic bags, which contained a "white-ish substance" consisting of methamphetamine residue. At approximately 7:11 p.m. on that date, while it was still light out, Pirozzolo observed "two males walking south" on the trail, one of whom was "cradling a ... plastic bag like the one from the meth sites." Pirozzolo recalled that, when the two men saw his marked patrol vehicle, they "began to pick up their pace."

Pirozzolo and Chris Hamula, another officer who was present at the time, then proceeded to a street farther down from where they had previously been stationed in an "attempt to cut the[ men] off and do a field interview." Upon encountering the men again, Pirozzolo "yelled over" to them, but they started walking away. Pirozzolo gave the men another verbal command to come over and Dunkle – who was carrying the plastic bag – stopped and turned back to speak with Pirozzolo, but defendant initially continued walking. According to Pirozzolo, when defendant realized that Dunkle had turned around, he also turned back and "got in front of Dunkle ... almost in an attempt to ... keep [him] away." Pirozzolo observed that defendant's carotid artery was visibly pulsating and he was "shaking" and "[s]weating profusely." When Pirozzolo asked what was in the plastic bag, Dunkle held it up, stated that it was soda and exposed a one-liter bottle. Pirozzolo testified that he immediately knew that the substance in the bottle was not soda, emphasizing that it was "a blue-ish white ... substance, which is common with a one-pot meth lab." Pirozzolo explained that Dunkle tried to hand the bag to him, but he immediately pushed it away, noting that an "active methamphetamine dumpsite" can explode. Defendant and Dunkle were then placed under arrest. Officer Hamula corroborated Pirozzolo's testimony about defendant's and Dunkle's initial reactions upon noticing Pirozzolo's marked patrol vehicle and defendant's physical manifestations upon being confronted.

The People also elicited testimony from Alex Krawczyk, a state trooper trained in the mechanics of methamphetamine production. Upon arriving at the scene to process the physical evidence, Krawczyk observed a yellow plastic bag that contained a one-liter bottle. At trial, Krawczyk explained the process of manufacturing methamphetamine using the one-pot method, noting that a solvent, such as Coleman fuel, is placed inside of a vessel – usually a plastic or glass bottle – and then sodium hydroxide, pseudoephedrine and lithium are added to form "meth oil," which is then strained and processed into usable methamphetamine. He testified that the bottle recovered from the scene appeared to have pseudoephedrine, ammonium nitrate and lithium in it, and to be in the process of forming meth oil.

The People also presented testimony from Nicholas DeMuth, a lieutenant investigator who interviewed defendant at the police station. DeMuth testified that defendant initially stated that he had "no idea why he was stopped by deputies that day" and "no idea about a meth lab." DeMuth noted, however, that when he confronted defendant about information obtained from a police database demonstrating that defendant previously purchased pseudoephedrine, defendant responded that he does so "on a regular basis" and had previously provided some to Dunkle "for the purpose of cooking methamphetamine." DeMuth confirmed that methamphetamine cannot be made without such precursor. Moreover, the People presented evidence that the bottle recovered from the scene contained 58.9 grams of methamphetamine, which is a little over two ounces.

Defendant testified that Dunkle was an "[a]cquaintance" and, on the date in question, he was performing construction work at the home of Dunkle's parents, which was close to the trail where he and Dunkle were eventually stopped by police. According to defendant, Dunkle left the residence after defendant began working and returned around 6:45 p.m. Dunkle then approached and asked defendant if he wanted to "take a break and walk with him to the store to buy a pack of cigarettes." Prior to departing, Dunkle grabbed some food and a drink, but defendant did not see what Dunkle put in the plastic bag. Defendant maintained that, when he and Dunkle were stopped by the police, he "immediately walked ... right to the cops" while Dunkle "lagged behind." Defendant averred that he had no idea that Dunkle was carrying a one-pot methamphetamine lab and had never seen one. On cross-examination, defendant conceded that he told DeMuth that, on a prior occasion, he bought a box of Sudafed, but maintained that he did so to exchange it for half a gram of methamphetamine from Dunkle. He clarified that he did not provide Dunkle with Sudafed on the day of their arrest and was adamant that he did not know that Dunkle was making methamphetamine, emphasizing that, when Dunkle had given him the drug in the past, it was in powder form.

On this record, the proof is sufficient to hold defendant liable for both charges upon a theory of accessorial liability (see People v. Moreno, 58 A.D.3d 516, 517, 871 N.Y.S.2d 126 [2009], lv denied 12 N.Y.3d 819, 881 N.Y.S.2d 27, 908 N.E.2d 935 [2009] ). As for the criminal possession charge, the People presented conclusive proof that Dunkle physically possessed a one-pot methamphetamine lab containing more than two ounces of the substance (see Penal Law § 220.18[2] ). As for defendant's liability, although a person's "mere presence at the scene of the crime is, standing alone, insufficient to support a finding of criminal liability" ( People v. Spencer, 152 A.D.3d 863, 866, 59 N.Y.S.3d 499 [2017], lv denied 30 N.Y.3d 983, 67 N.Y.S.3d 586, 89 N.E.3d 1266 [2017] [internal quotation marks and citations omitted]), the verdict is not based solely upon defendant's presence next...