686 N.Y.S.2d 114 | N.Y. App. Div. | 1999
Appeal from a judgment of the County Court of Clinton County (Halloran, J.), rendered July 8, 1996, upon a verdict convicting defendant of the crime of criminal possession of a controlled substance in the first degree.
In May 1995, US Border Patrol Agent Mark Henry observed defendant backing up his vehicle on Interstate Route 87 approximately 100 yards from the United States-C anadian border in the Town of Champlain, Clinton County. Henry stopped the vehicle and requested and received identification from defendant including a New York driver’s license; he also received defendant’s consent to open the trunk of the vehicle. Henry subsequently determined that the passengers in the vehicle were defendant’s wife, niece and child. Defendant’s wife was unable to produce a green card or any other documents evidencing her legal presence in the United States. Based upon the wife’s lack of documentation and defendant’s admission that he had smuggled her into the country in 1993, Henry requested and received defendant’s consent to follow him to the border patrol station in order to make further inquiries regarding her status. At the station Henry directed Agent Brian Jefferson to conduct a record check which, ultimately, failed to reveal any evidence of the wife’s legal status.
Thereafter, Henry directed Jefferson to arrest defendant’s wife and search defendant’s vehicle for further documentation. Jefferson then obtained defendant’s permission to search the vehicle; upon searching the trunk of the car, Jefferson observed a package wrapped in Christmas paper. Jefferson opened the package revealing a large plastic bag with a white, powdery
Later that evening defendant indicated that he wanted to talk to Henry. According to Henry, when given the opportunity and without prompting, defendant stated that he had purchased the cocaine in Brooklyn. Henry asked Jefferson how much cocaine was present and defendant spontaneously stated that there was “500 grams”, “a pound”. Early the next day, defendant signed an agreement with a senior investigator from the State Police indicating that he would cooperate with the police. The investigator subsequently testified that he offered no promises to defendant in return for his cooperation other than agreeing not to arrest his wife on the drug charges.
In August 1995, defendant was indicted for criminal possession of a controlled substance in the first degree. Subsequently, defendant was granted, inter alia, a Huntley hearing based on his claims that his statements were involuntary, a product of police threats against his family, in violation of defendant’s Miranda rights and made in return for an unfulfilled promise by law enforcement to reduce the charge. County Court (Lewis, J.) denied defendant’s motion to suppress his statements. Following a jury trial, defendant was convicted of criminal possession of a controlled substance in the first degree. Thereafter, County Court imposed the most lenient permissible prison sentence of 15 years to life, and imposed a fine of $25,000. Defendant appeals.
We affirm. Initially, we conclude that County Court properly denied defendant’s motion to suppress all statements and all evidence seized. The record reveals that defendant was stopped by Henry within 100 yards of the United States-Canadian border; Henry testified that his reasons for stopping defendant’s vehicle were twofold: (1) that he had witnessed defendant committing a traffic violation by backing up on Interstate Route 87, and (2) the nature of the infraction in such close proximity
In our view, Henry had reasonable suspicion sufficient to warrant the stop and question defendant and his passengers. Moreover, Henry obtained consent to search the trunk and, upon the failure of defendant’s wife to establish her immigration status, Henry had reasonable suspicion that defendant’s wife was an illegal alien, thereby justifying his request for defendant, who was transporting an alleged illegal alien, to follow him to the station, a request to which defendant voluntarily consented (see, People v Edmund, 169 AD2d 195, 202, lv denied 78 NY2d 1075). County Court (Lewis, J.) properly concluded that defendant’s statements to Jefferson and Henry were neither in response to an investigatory question nor preceded his voluntary and knowing waiver of his Miranda rights.
We also conclude that County Court properly refused to allow the cooperation agreement between defendant and the State Police into evidence. At trial, the court allowed defendant to present evidence of the agents’ alleged coercion and threats during the time period in which those statements were made. The court, however, refused to allow the cooperation agreement into evidence, finding it irrelevant to the determination of the voluntariness of defendant’s statements made at least seven hours earlier. It is well settled that a defendant has a constitutional right to confront his or her accusers, including the right to submit evidence tending to prove that a witness has fabricated his or her testimony (see, People v Hudy, 73 NY2d 40, 56-57).
Pursuant to CPL 60.45 (2) (b) (i), a confession is rendered involuntary when it is obtained “by means of any promise or statement of fact, which * * * creates a substantial risk that the defendant might falsely incriminate himself’. In addition, a jury may properly consider any evidence bearing on the voluntariness of a defendant’s inculpatory statement (see, People
We also reject defendant’s contention that he did not receive effective assistance of counsel. “To prevail on appeal, defendant must have established from the record the absence of strategic or other legitimate explanations for counsel’s alleged failures” (People v Ahl, 243 AD2d 985, 987, lv denied 91 NY2d 868 [citation omitted]; see, People v Garcia, 75 NY2d 973, 974). Here, the record indicates that defense counsel was assiduous in his defense throughout the entire proceeding. Indeed, the record does not support a claim of ineffective assistance of counsel.
Finally, we reject defendant’s contention that the $25,000 fine imposed on him pursuant to Penal Law § 80.00 was improper in that County Court failed to set forth its considerations justifying the amount. The sentencing minutes reveal that defendant failed to object to both the imposition of a fine or its amount, and, therefore, defendant has failed to preserve the issue for consideration by this Court (see, People v Davila, 238 AD2d 625, 626). Nevertheless, were we to consider the merits of defendant’s contention, we consider it unavailing. The record reveals that, prior to sentencing, the People submitted a letter and supplemental affidavit to County Court detailing defendant’s financial status and history and the court specifically stated that it had read the letter and the presentence report. In our view, the court’s review of these documents without specific findings is sufficient under Penal Law § 80.00 (1) (c). Notably, defendant’s profit or gain, if any, from the crime charged was not at issue in this case (see, Penal Law § 80.00 [3]).
We have reviewed defendant’s remaining contentions, including the denial of his request for a missing witness charge, and find them to be without merit.
