People v. LucianoPeople v. Luciano
In April 2015, the City of Troy Poliсe Department obtained a search warrant for defendant’s residence. The search warrant was predicated on two controlled buys of marihuana by a confidential informant (hereinafter CI) conducted in March and April 2015 from defendant. When the search warrant was executed, as relevant here, the police seized heroin and MDMA and arrested defendant.1 In an October 2015 indictment, defendant was charged with: criminal possession of a controlled substance in the third degree (count 1, heroin with intent to sell); criminal possession of a controlled substancе in the fourth degree (count 2, heroin with an aggregate weight of one-eighth ounce or more); criminal possession of a controlled substance in the fourth degree (count 3, MDMA); criminal possession of a controlled substance in the fifth degree (count 4, heroin with intent to sell); criminal possеssion of a controlled substance in the seventh degree (count 5, MDMA); unlawful possession of marihuana (count 6); and criminally using drug paraphernalia in the second degree (counts 7 and 8). Defendant moved for suppression of the evidence obtained in the search, alleging that the seаrch warrant was not based upon probable cause. After County Court conducted an evidentiary hearing and an in camera Darden examination of the CI, the court denied defendant’s motion.
Following a jury trial, defendant was found guilty of criminal possession of a controlled substance in the seventh degree under counts 1, 4 and 5, criminal possession of а controlled substance in the fourth degree under counts 2 and 3 and un-
Initially, we note that defendant’s convictions under counts 1 and 5 of the indictment for criminal possession of a controlled substance in the seventh degree must be dismissed as inclusory concurrent counts of the convictions for criminal possession оf a controlled substance in the fourth degree under counts 2 and 3, respectively (see
We turn next to defendant’s contention that County Court erred when it denied his suppression motion with respect to the evidence seized during the search. Defendant argues that, since the testimony of the CI at the Darden hearing contradicted the statements made by the police officer in the application for the search warrant, the People failed to establish the reliability of the CI and, therefore, the search warrant was not supported by probable cause. “[A] search warrant application must entail sufficient information to support a reasonable belief that evidence of a crime will be found in a particular place” (People v Pasco, 134 AD3d 1257, 1258 [2015]). It “may be validly based upon hearsay information found to be reliable [and,] [i]n this regard, an affidavit by a police officer which is based upon the observations made by a fellow police officer when the two are engaged in a common investigation furnishes a reliable basis for the warrant” (People v Marshall, 57 AD3d 1163, 1164 [2008] [internal quotation marks, ellipsis and citation omitted]).
At the evidentiary hearing and in his sworn statement in support of the application for the search warrant, John A. Comitale Jr., a detective with the Troy Police Department, stated that the CI “is a proven and reliable [i]nformant, who has participated in numerous controlled narcotics [buys] for the Troy Police Department which have resulted in numerous person(s) being [i]ndicted and/or arrestеd.” County Court found
Comitale further stated that the CI informed him that large quantities of marihuana could be purchased from defendant and that he had been in defendant’s residence on several occasions. This statement, without more, would be insufficient to support a finding of probable cause in a search warrant apрlication since the CI “had no record of reliability” (People v Mitchell, 57 AD3d 1232, 1232 [2008], lv denied 12 NY3d 760 [2009]). However, based on the information from the CI, the police conducted two controlled buys of marihuana at defendant’s residence. Probable cause to believe that defendant was involved in the sale of marihuana was thеn supported not only by the information furnished by the CI, but also by information from the police officers directly involved in the controlled buy operations (see People v Marshall, 57 AD3d at 1165). The application for the search warrant set forth Comitale’s training and experience as a police officer, including his experience as a detective in the Troy Police Department’s Narcotics Unit. In the application and in his testimony at the suppression hearing, Comitale related information provided to him by the police officers directly involved in the controlled buy operations who had personally listened to the pre-buy phone calls with defendant, as well as audio transmissions from the transmitter that the CI was wearing during the controlled buys. He also related the observations of the CI provided by the police officers prior to, during and after the buys. Under the circumstаnces here, the information supplied by Comitale, based on his own knowledge and the hearsay statements of the other officers involved in the controlled buys, sufficiently corroborated the CI’s state-
Defendant next argues that his conviction of criminal possession of a controlled substance in the fourth degree under count 3 is not supported by legally sufficient evidence and is against the weight of the evidence. At the close of the People’s case, defendant moved to dismiss the entire indictment, but failed to specify the grounds upon which count 3 should be dismissed. Thus, his legal sufficiency argument is “unpreserved for review in the absence of а trial motion to dismiss premised on the specific grounds now being raised on appeal” (People v Novak, 148 AD3d 1352, 1353 [2017]; see People v Thorpe, 141 AD3d 927, 928 [2016], lv denied 28 NY3d 1031 [2016]). “Nevertheless, we must, as part of our weight of the evidence review, evaluate whether the elements of each crime were proven beyond a reasonable doubt” (People v Collier, 146 AD3d 1146, 1147-1148 [2017] [citations omitted]; see People v Danielson, 9 NY3d 342, 349 [2007]).
In his testimony, defendаnt denied possessing the MDMA and a different verdict would not have been unreasonable if the jury decided to believe defendant’s testimony. Thus, we, “like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” (People v Bleakley, 69 NY2d 490, 495 [1987] [internal quotation marks and citation omitted]; accord People v Collier, 146 AD3d at 1148). As is relevant here, “[a] person is guilty of criminal possession of a controlled substance in the fourth degree when he [or she] knowingly and unlawfully possesses ... a hallucinogenic substance and said hallucinogenic substance weighs one gram or more” (
Defendant next contends that he was denied his due process rights to actively participate in his defense due to illness. We find this argument to be unpreserved for appellate review, as defendant never requested an adjournment because of any claimed infirmity (see People v Cooper, 234 AD2d 77, 78 [1996], lv denied 89 NY2d 1090 [1997]). However, were we to cоnsider the issue, we would find it without merit. The key inquiry in such situation is whether the defendant “ ‘has sufficient present ability to consult with his [or her] lawyer with a reasonable degree of rational understanding—and whether he [or she] has a rational as well as a factual understanding of the proceedings against him [or her]’ ” (People v Phillips, 16 NY3d 510, 516 [2011], quoting Dusky v United States, 362 US 402, 402 [1960]). County Court noted that it had observed defendant during the period of his alleged illness and that he was taking notes, participating and seemed attentive. Defendant was present every day of the trial and, at one point, he was asked by the court whether he had sufficient time to discuss one of the multiple plea offers that had been extended to him. Defendant responded to the court’s questioning without hesitation, thus demonstrating his ability to understand the proceedings.
Defendant’s contention that County Court erred when it refused to charge criminal possession of a controlled substаnce as a lesser included offense of count 2 of the indictment requires little discussion. “To establish entitlement to a lesser included offense charge, a defendant must demonstrate that, in all circumstances, it is impossible to commit the greater crime without concomitantly, by the same conduct, committing the lesser offense and, secondarily, that there is a reasonable view of the evidence that would support a finding that he [or she] committed the lesser offense but not the greater” (People v Grayson, 138 AD3d 1250, 1251 [2016] [internal quotation marks, ellipses and citations omitted], lv denied 27 NY3d 1132 [2016]; see
Count 2 of the indictment charged defendant with criminal possession of a controlled substance in the fourth degree due to
Finally, we find no support in the record for defendant’s contentions regarding his sentence. Defendant’s claim that the imposed sentence was in retaliation for him exercising his constitutional right to trial is unpreserved for our review (see People v Hurley, 75 NY2d 887, 888 [1990]; People v Martinez, 144 AD3d 1326, 1326 [2016], lv denied 28 NY3d 1186 [2017]). “Even had defendant preserved his claim that he was punished for exercising his right to trial, the mere fact that a sentence imposed after trial is greater than that offered in connection with plea negotiations does not, without more, establish retaliation or vindictiveness” (People v Major, 143 AD3d 1155, 1160 [2016] [citations omitted], lv denied 28 NY3d 1147 [2017]). We note that, during the trial and after the People had rested, County Court clarified the multiple plea offers made by the People, many of which would have enabled defendant to address his addiction to heroin. At that point, defendant rejected the last offer made. We find that “the record contains no support for the conclusion that the sentеnce was retaliatory rather than based upon the seriousness of [the] offense[s] and other relevant sentencing factors” (People v Haskins, 121 AD3d 1181, 1185 [2014], lv denied 24 NY3d 1120 [2015]; see People v Martinez, 144 AD3d at 1327). As to defendant’s contention that
Peters, P.J., Rose, Aarons and Pritzker, JJ., concur.
Ordered that the judgment is modified, on the law, by reversing defendant’s convictions of criminal possession of a controlled substance in the seventh degree under counts 1 and 5 of the indictment; said counts dismissed and the sentences imposed thereon vacated; and, as so modified, affirmed.