People v. DouglasPeople v. Douglas
MEMORANDUM AND ORDER
Appeals (1) from a judgment of the Supreme Court (Breslin, J.), rendered January 9, 2015 in Albany County, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the third degree (three counts), criminal possession of a controlled substance in the fourth degree, criminally using drug paraphernalia in the second degree (two counts), criminal sale of a controlled substance in the third degree (two counts) and criminal possession of marihuana in the fifth degree, and (2) by permission, from an order of said court, entered August 28, 2015 in Albany County, which denied defendant‘s motion pursuant to
A confidential informant (hereinafter CI) made two controlled purchases of crack cocaine from defendant on separate dates in October 2013. Thereafter, police officers searched his apartment pursuant to a warrant. Defendant was indicted in November 2013 on various charges arising out of the execution of the warrant. Supreme Court denied his motion to suppress evidence based upon alleged deficiencies in the warrant application.
In April 2014, defendant was indicted on several charges arising out of the two controlled purchases. Supreme Court granted the People‘s motion to consolidate the indictments and, after it became apparent that defendant‘s assigned counsel had previously represented the CI, appointed new counsel for defendant. Following a jury trial, defendant was convicted of criminal possession of a controlled substance in the third degree (three counts), criminal possession of a controlled substance in the fourth degree, criminally using drug paraphernalia in the second
We reject defendant‘s argument that the search warrant application and the warrant were fatally defective on the ground that neither document provided the printed name of the issuing magistrate. Contrary to defendant‘s assertion, the requirements of
Defendant next contends that reversal is required because Supreme Court denied his challenge for cause to a prospective juror who was related to one of the trial witnesses. When asked about the relationship, the juror explained that the witness was his cousin; later, in somewhat unclear testimony, he appeared to indicate that the witness was his second cousin1. Defense counsel made a challenge for cause on the basis of this family relationship, and also based upon the testimony that the juror and the witness had a social relationship. Supreme Court denied the challenge, noting that the juror had stated that he could treat the testimony of the witness fairly despite the relationship. However, this determination applied the incorrect standard.
As pertinent here,
Nonetheless, we reject defendant‘s claim that reversal is required on the ground that he used a peremptory challenge to dismiss the juror and thereafter exhausted his remaining peremptory challenges (see e.g. People v Lynch, 95 NY2d 243, 248 [2000]). Instead, the record reveals that the error was cured when Supreme Court subsequently granted him an additional peremptory challenge. The court thus put defendant in the same position that would have resulted if the challenge for cause had been granted (see People v Donahue, 81 AD3d 1348, 1349 [2011], lvs denied 16 NY3d 894 [2011]; People v Miles, 55 AD3d 955, 955 [2008], lv denied 11 NY3d 928 [2009]; People v Apolinar, 208 AD2d 548, 550 [1994], lv denied 84 NY2d 1028 [1995]; see also People v Wales, 138 AD2d 766, 768 [1988], lv denied 72 NY2d 868 [1988]).2
We reject defendant‘s claim that Supreme Court erred in denying his request for a missing witness instruction pertaining to a female officer who searched the CI before the controlled purchases. Such a charge “allows a jury to draw an unfavorable inference based on a party‘s failure to call a witness who would normally be expected to support that party‘s version of events” (People v Savinon, 100 NY2d 192, 196 [2003]; accord People v Onyia, 70 AD3d 1202, 1204 [2010]). Here, defendant did not meet his burden of establishing one of the three necessary conditions for the requested charge, that is, to demonstrate that the witness would be expected to give noncumulative testimony (see People v Savinon, 100 NY2d at 197; People v Brown, 139 AD3d 1178, 1179 [2016]; People v Turner, 73 AD3d 1282, 1284 [2010], lv denied 15 NY3d 896 [2010]). Taken together, the testimony of the two detectives who conducted the controlled transactions — both of whom were male — established that the female CI was searched at the police station before each purchase by a female “matron” to make sure that she was not carrying any contraband, searched again by one of the detectives in the police vehicle just before each transaction, and searched a third time by the same detective immediately afterward. They described the search procedure that the detective employed and the more thorough procedure that the female matron could use if necessary. They further stated that the CI had participated in “dozens” of previous transactions and had never been found to be hiding contraband. The CI testified consistently with the detectives, stating that she was searched by a “matron” before each purchase and then by one of the detectives before and after the transaction. Although defendant now contends that the CI‘s testimony did not clearly establish the extent of the female officer‘s search and, thus, whether the CI could have been carrying undetected drugs, the CI testified that she did not have any contraband. Defense counsel did not challenge her credibility on this point, and did not seek to obtain more details about the search during cross-examination. In view of “the consistent and uncontradicted testimony” of the detectives and the CI, defendant failed to demonstrate that the female officer‘s testimony would have been noncumulative, and, thus, Supreme Court did not abuse its discretion in denying his request (People v Turner, 73 AD3d at 1284; see People v Edwards, 14 NY3d 733, 735 [2010]; People v Cummings, 157 AD3d 982, 987 [2018], lv denied 31 NY3d 982 [2018]; People v Jackson, 151 AD3d 1466, 1469 [2017], lv denied 30 NY3d 950 [2017]).
Defendant‘s claim that his sentence was imposed in retaliation for his choice to reject a proposed plea agreement and to exercise his right to trial is unpreserved (see People v Hurley, 75 NY2d 887, 888 [1990]; People v Martinez, 144 AD3d 1326, 1326 [2016], lv denied 28 NY3d 1186 [2017]). In any event, the mere fact that defendant‘s aggregate prison sentence was greater than those offered in two pretrial plea offers that he rejected “is not proof that defendant was penalized for exercising his right to a jury trial” (People v Robinson, 72 AD3d 1277, 1278 [2010], lv denied 15 NY3d 809 [2010]; accord People v Young, 86 AD3d 796, 800 [2011], lv denied 17 NY3d 905 [2011]). Notably, the sentences that defendant were offered before trial contemplated guilty pleas to only one felony, while his ultimate sentence arose from his convictions for multiple felonies and misdemeanors. As for the claim that the sentence is harsh and excessive, upon consideration of defendant‘s extensive criminal history and failure to express remorse, we find no extraordinary circumstances or abuse of discretion warranting a modification (see People v Lee, 129 AD3d 1295, 1300 [2015], lv denied 27 NY3d 1001 [2016]; People v Sudler, 75 AD3d 901, 906 [2010], lv denied 15 NY3d 956 [2010]).
Supreme Court did not err in denying defendant‘s
Defendant‘s remaining contentions, including those raised in his pro se submission, have been examined and found to be lacking in merit.
Egan Jr., Clark, Mulvey and Rumsey, JJ., concur.
ORDERED that the judgment and order are affirmed.