THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v ANDRE HAWKINS, Appellant.
Appellate Division of the Supreme Court of New York, Third Department
July 23, 2015
15 NYS3d 485
Egan Jr., J. Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered July 27, 2012, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree (two counts) and criminal possession
In April 2011, as the result of an investigation by the Ulster Regional Gang Enforcement Narcotics Team (hereinafter URGENT), defendant was indicted and charged with two counts of criminal sale of a controlled substance in the third degree and two counts of criminal possession of a controlled substance in the third degree. The charges stemmed from two separate and targeted buys in April 2010, wherein defendant sold narcotics to an undercover officer assigned to URGENT and working in conjunction with a confidential informant (hereinafter CI). Although a warrant for defendant‘s arrest was issued in April 2011, he was not apprehended until he turned himself in to authorities in October 2011. Following defendant‘s arraignment, defense counsel moved to dismiss the indictment upon statutory speedy trial grounds, contending, among other things, that the People failed to exercise due diligence in locating defendant. A hearing ensued, at the conclusion of which County Court found that the People had satisfied their due diligence obligation; as a result, the 200 days that elapsed between the filing of the indictment in April 2011 and the People‘s statement of readiness in October 2011 were not chargeable to the People, and defendant‘s speedy trial motion was denied.
The matter proceeded to trial, at which time both the undercover officer and defendant, among others, appeared and testified as to the underlying drug transactions. Defendant was convicted as charged and thereafter was sentenced, as a second felony offender, to concurrent prison terms of 10 years followed by three years of postrelease supervision. This appeal by defendant ensued.
We affirm. Initially, we find no merit to defendant‘s claim that County Court erred in denying his speedy trial motion. Inasmuch as defendant was charged with felony offenses, the
Here, there is no dispute that 200 days elapsed between the filing of the indictment in April 2011 and the People‘s declaration of readiness in October 2011, and the record makes clear that defendant‘s whereabouts were unknown to law enforcement officials during this time period. Hence, the issue distills to whether the People exercised due diligence in attempting to locate defendant. In this regard, a detective with the City of Kingston Police Department in Ulster County who, in turn, was assigned to URGENT, testified that, immediately after the warrant for defendant‘s arrest was issued, he reached out to the CI who had participated in the underlying drug transactions in an effort to obtain an address or phone number for defendant. When that effort proved to be unsuccessful, the detective ran defendant‘s criminal history report and obtained a former address for defendant in the City of Schenectady, Schenectady County. Within one week of the issuance of the arrest warrant, the detective contacted the City of Schenectady Police Department and asked that they check the address in question.
When a check of the Schenectady County address failed to locate defendant, the detective entered defendant‘s arrest warrant into the New York State Police Information Network database in May 2011, a nationwide database of active arrest warrants. The detective further testified that, in July 2011, a
In light of the foregoing efforts, it cannot be said that “the authorities shirked their continuing obligation of due diligence” (People v Marrin, 187 AD2d 284, 286 [1992], lv denied 81 NY2d 843 [1993]; accord People v Petrianni, 24 AD3d at 1225). Although defendant averred that he was “living openly” and receiving mail at a particular address during the relevant time period and faults the People and law enforcement for failing to check his Social Security number against the records of various governmental agencies, counsel conceded at oral argument that defendant‘s name was not on the lease for the premises, and the record is devoid of proof that defendant registered that address with any entity, including the United States Postal Service, the Department of Motor Vehicles, the Department of Labor and/or state and federal taxing authorities (compare People v Devino, 110 AD3d at 1149; People v Devore, 65 AD3d at 697). Under these circumstances, we are satisfied that the People discharged their due diligence obligation —even if “greater efforts could have been undertaken” (People v Grey, 259 AD2d at 249). Accordingly, defendant was not deprived of his statutory right to a speedy trial.
Nor are we persuaded that County Court erred in permitting the People to amend the indictment.
Although defendant‘s challenge to the legal sufficiency of the evidence has not been preserved for our review, “our weight of the evidence analysis necessarily involves an evaluation of whether all elements of the charged crimes were proven beyond a reasonable doubt at trial” (People v Pine, 126 AD3d 1112, 1114 [2015] [internal quotation marks, brackets and citation omitted]; see People v Colburn, 123 AD3d 1292, 1292 n [2014], lv denied 25 NY3d 950 [2015]). Insofar as is relevant here, “[a] person is guilty of criminal sale of a controlled substance in the third degree when he [or she] knowingly and unlawfully sells . . . a narcotic drug” (
The record reflects that arrangements were made through the CI for the undercover officer to make a controlled drug purchase from defendant at the Kingston Plaza parking lot in
Within minutes, a phone call was placed to the CI and a second controlled buy was arranged. The undercover officer, still wearing a body wire, returned to the shopping plaza and awaited the arrival of the CI and defendant. As with the previous transaction, the undercover officer exited her vehicle and entered the back seat of the CI‘s vehicle, at which point defendant handed the undercover officer four small, clear plastic “twists” of a substance later determined to be crack cocaine in exchange for $80 in prerecorded buy money. The undercover officer again returned to a predetermined location, relinquished the drugs in question and, as with the prior transaction, positively identified defendant as the individual from whom she had purchased the drugs. Both transactions were recorded by members of URGENT, and audio/video recordings of these transactions were entered into evidence at trial.
Although defendant readily admitted to being present for the subject sales, he insisted that the actual drug transactions occurred between the CI and the undercover officer. This conflicting testimony, however, presented a credibility issue for the jury to resolve (see People v Toye, 107 AD3d 1149, 1151 [2013], lv denied 22 NY3d 1091 [2014]). Accordingly, “[w]hile a different verdict would not have been unreasonable, viewing the evidence in a neutral light and giving due deference to the jury‘s credibility determinations, we cannot say that the jury failed to accord the evidence the weight that it deserved” (People v Pine, 126 AD3d at 1115-1116; see People v Richards, 124 AD3d 1146, 1146-1147 [2015], lv denied 25 NY3d 992 [2015]).
Finally, defendant contends that he was denied the effective
Based upon our review of the record as a whole, we are satisfied that defendant received meaningful representation. Trial counsel engaged in appropriate pretrial motion practice, including filing a motion to dismiss the indictment upon statutory speedy trial grounds, made cogent opening and closing statements, strongly cross-examined the People‘s witnesses, registered appropriate objections and arguments throughout the course of the trial and advanced a plausible defense—namely, that it was the CI, who died prior to trial, who actually sold the drugs to the undercover officer on the day in question. Consistent with that theory, defense counsel elicited testimony regarding the CI‘s criminal background, the fact that the CI was paid for his services in connection with the underlying transactions and that, contrary to routine procedures, he was not searched for contraband prior to the controlled purchases at issue.
Although defense counsel indeed questioned defendant regarding his prior criminal history, thereby admittedly opening the door for further exploration by the People on this point, the record makes clear that this was an intentional, tactical decision on the part of counsel. Specifically, counsel‘s strategy was designed to show that, while defendant did have a prior history of drug use and drug-related convictions, defendant, who last sold drugs in 1992 and last used drugs in 1998, was a recovering addict who no longer sold drugs to support his habit. Upon reviewing both the colloquy between defense counsel and County Court and counsel‘s summation, it is apparent that counsel was endeavoring to portray defendant as a man who had seen the error of his ways (at least as far as drugs were concerned) and, hence, it was far more likely that it was the CI—and not defendant —who had sold the drugs to the
McCarthy, J.P., Lynch and Devine, JJ., concur. Ordered that the judgment is affirmed.
McCarthy, J.P.
Lynch and Devine, JJ.