People v. CummingsPeople v. Cummings
MEMORANDUM AND ORDER
Appeal from a judgment оf the County Court of Clinton County (McGill, J.), rendered October 28, 2014, upon a verdict convicting defendant of the crime of criminal possession of a controlled substance in the third degree.
After members of the Adirondack Drug Task Force observed a controlled drug transaction between Tiffany Moore and a confidential informant in defendant‘s presence outside a residence, Moore drove away in a vehicle in which defendant was the front seat passenger. Within a short time, police conducted a traffic stop and a search of the vehicle disclosed a large quantity of heroin packaged in 112 envelopes under the front passenger seat. Defendant was thereafter charged by indictment with criminal pоssession of a controlled substance in the third degree. Defendant‘s motion to suppress, among other things, his statements to police and the physical evidence was denied following a combined Huntley/Ingle hearing. After a jury trial, he was convicted аs charged and sentenced, as a second felony offender, to a prison term of nine years followed by three years of postrelease supervision. Defendant now appeals.
We affirm. Initially, defendant argues that policе lacked probable cause to stop the
To the extent that defendant challenges the lawfulness of the ensuing search of the vehicle,2 Clarke testified that, after the stop, defendant and Moore exited the vehicle and he spoke to them briefly; Clarke then returned to his vehicle to write the traffic ticket and check Moore‘s license and registration, when he observed defendant become “fidgety,” reach into the pоuch he carried at his waist, get back into the front passenger seat, lean over and then exit the vehicle. At that point, Clarke returned to the vehicle and, upon request, defendant consented to Clarke looking in the pouch, where hе found a cut straw with resin of the type commonly used to ingest narcotics. Clarke then obtained Moore‘s consent to search the vehicle, which was
Next, defendant contends that his statements to police during the traffic stop and at the police station should have been suppressed as involuntary because he was impaired by drugs. The policе officers who had face-to-face interactions with defendant during the stop, arrest and questioning, whom County Court found credible, testified that defendant did not appear to be impaired or intoxicated, was not confused, did not request an attorney and was cooperative. Their testimony established that defendant received Miranda warnings shortly after his arrest, indicated that he understood them and agreed to speak with the officers. As County Court correctly observed, the video reсording of the police interview of defendant at the station, in which he admitted that the heroin found in the vehicle belonged to him, while partially unintelligible, belies his claims that he was impaired or had difficulty understanding his rights. There was no convincing evidencе that defendant was impaired “to the level of mania or to the level where [he was] unable to comprehend the meaning of his words so as to render his statement involuntary” (People v Whitted, 117 AD3d 1179, 1180-1181 [2014] [internal quotation marks, ellipses and citations omitted], lv denied 23 NY3d 1026 [2014]; see People v Scott, 47 AD3d 1016, 1020 [2008], lv denied 10 NY3d 870 [2008]). Accordingly, we find that the People proved beyond a reasоnable doubt that defendant was advised of and knowingly waived his rights and that his statements were voluntary and, thus, his motion to suppress was properly denied (see People v Jin Cheng Lin, 26 NY3d 701, 719 [2016]; People v Steigler, 152 AD3d 1083, 1083-1084 [2017], lv denied 30 NY3d 983 [2017]).
We now turn to defendant‘s claims that errors occurred at trial. We are not persuaded by the contention raised in defendant‘s pro se brief that County Court erred in striking for cause prospective juror No. 103. “When a prospective juror‘s impartiality is in doubt, it is the court‘s obligation to make further inquiries and to excuse the juror if the doubt is not fully dispelled. Nоtably, if there is any doubt about a prospective juror‘s impartiality, the trial court should err on the side of excusing the juror, since at worst the court will have replaced one impartial juror with another” (People v Briskin, 125 AD3d 1113, 1117 [2015] [internal quotation marks, brackets and citations omitted], lv denied 25 NY3d 1069 [2015]). The record reflects that the prospective juror expressed concerns about the potential sentence that defendant faced and whether it would be fair or influenced by race, and indicated that she did not think that she could be impartial unless defendant testified. As thе juror did not provide an “unequivocal assurance of impartiality,” County Court properly granted the People‘s motion to strike her for cause pursuant to
Next, defendant argues that County Court erred in permitting the People to refer to him by his street name, Mafia, and to elicit testimony using that name. These references occurred in the opening statements аnd during the testimony of the police officers involved in the ongoing drug investigations and the controlled buy; the officers knew defendant only by his street name from confidential sources and first learned his identity after he was arrested. As defendant‘s street name was relevant to his identity and he was known to and identified by witnesses by that name, we cannot conclude that the court abused its discretion in permitting its use during trial while striking any reference to it from the indictment, although the court should have instructed the jury that it could not consider his street name as any evidence of guilt of the crime charged (see People v Hoffler, 41 AD3d 891, 892-893 [2007], lvs denied 9 NY3d 962, 963 [2007]; see also People v Franqueira, 143 AD3d 1164, 1169 [2016]; People v Hernandez, 89 AD3d 1123, 1125-1126 [2011], lvs denied 20 NY3d 1099 [2013]). However, we agree with defendant that County Court should not have required him to publish for the jury his tattoo bearing, among other things, his street name because it had little prоbative value, particularly given the other testimony regarding the tattoo, and doing so was prejudicial (see People v Morgan, 24 AD3d 950, 952-954 [2005], lv denied 6 NY3d 815 [2006]; compare People v Miranda, 77 AD3d 1323, 1324 [2010], lv denied 16 NY3d 833 [2011]). In light of the overwhelming evidence of defendant‘s guilt, including his admission, there is not a significant probability that he would have been acquitted of this crimе but for the display of his tattoo and, thus, any error was harmless (see People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Miranda, 77 AD3d at 1324).
Defendant also contends that County Court‘s remark regarding the content of the police dash cam video recording of the traffic stop played during trial was unduly prejudicial. During cross-еxamination of Clarke, defense counsel played a clip of the video, asking Clarke if he was able to make certain observations on the video regarding the movements of the vehicle occupants. When the People objected, the court engaged in an exchange with counsel, commenting that counsel was improperly “assuming that there was movement in the car, which, frankly, I don‘t see.” While the court should not have expressed its opinion as to the contеnts of the video (see People v Byrd, 152 AD3d 984, 988 [2017]), the court repeatedly made clear that “[t]he video speaks for itself.” Counsel was permitted to replay the portion of the video in issue and again question Clarke as to his observations. Accordingly, the remark did not dеprive defendant of a fair trial or reflect bias against him (see id.; see also People v Arce-Santiago, 154 AD3d 1172, 1174 [2017]).
Further, we find no abuse of discretion in the denial of defendant‘s request for a continuance, on the last day of trial, to produce Moore as a witness (see People v Becoats, 17 NY3d 643, 651-652 [2011], cert denied 566 US 964 [2012]; People v Durham, 148 AD3d 1293, 1295 [2017], lv denied 29 NY3d 1091 [2017]). To that end, defendant did not make the requisite showing of materiality, among other things, as Moore‘s expected testimony reflected that it was not relevant to issues at trial and, instead, pertained to matters already resolved at the suppression hearings (see People v Booker, 141 AD3d 834, 835 [2016], lv denied 28 NY3d 1026 [2016]; compare People v Hartman, 64 AD3d 1002, 1005 [2009], lv denied 13 NY3d 860 [2009]). Likewise, we аre unpersuaded that County Court erred in refusing to give a missing witness charge relative to the confidential informant who participated in the controlled buy (see People v Jackson, 151 AD3d 1466, 1469 [2017], lv denied 30 NY3d 950 [2017]). This testimony was cumulative to the police testimony regarding the controlled buy and, as the сourt correctly concluded, it was not relevant to the sole charge against defendant, which stemmed from the possession of drugs in the vehicle unrelated to the controlled buy (see id.; see also People v Edwards, 14 NY3d 733, 735 [2010]; People v Coleman, 151 AD3d 1385, 1388 [2017], lv denied 29 NY3d 1125 [2017]).
Finally, contrary to defendant‘s pro se contention, he was provided with notice of his 2012 drug-related predicate felony conviction in Monroe County, which he admitted at sentencing, and he did not object to the procedures followed or to being sentenced as a second felony offendеr. Thus, his current challenge to that sentencing is unpreserved (see People v Wynn, 149 AD3d 1252, 1256 [2017], lv denied 29 NY3d 1136 [2017]). In any event, he was properly sentenced as a second felony drug offender based upon his admission to that predicate conviction and the sentence was legal (see Penal Law §§
McCarthy, J.P., Lynch, Devine and Aarons, JJ., concur.
ORDERED that the judgment is affirmed.