People v. MontfordPeople v. Montford
Garry, J. Appeal from а judgment of the County Court of Schenectady County (Murphy III, J.), rendered March 26, 2015, upon a verdict convicting defendant of the crimes of criminal
In March 2014, a confidential informant (hereinafter CI) made a controlled purchase of crack cocaine from defendant in the City of Schenectady, Schenectady County. Law enforcement officers stopped defendant after the transaction and found that he was carrying a pouch containing a substance later shown to be hеroin and another substance alleged to be marihuana. Defendant was charged with criminal sale of a controlled substance in the third degree, two counts of criminal possession of a controlled substаnce in the third degree pertaining respectively to the cocaine and the heroin, and unlawful possession of marihuana. During the subsequent jury trial, defendant‘s motion to dismiss the marihuana charge was granted. He was convicted of the remaining charges and sentenced to concurrent prison terms of nine years on the criminal sale of a controlled substance conviction and the criminal possession cоnviction pertaining to cocaine, and to a consecutive nine-year prison term on the criminal possession conviction pertaining to heroin, followed by two years of postrelease supervision on each conviction. Defendant appeals.
Defendant contends that his conviction for criminal possession of a controlled substance in the third degree premised upon the herоin found on his person was against the weight of the evidence and was not supported by legally sufficient evidence, in that the People failed to prove that he had the requisite intent to sell. The legal sufficiency claim is unpreserved, as defendant failed to raise this argument in his trial motion for dismissal (see People v Thiel, 134 AD3d 1237, 1237-1238 [2015], lv denied 27 NY3d 1156 [2016]; People v Junior, 119 AD3d 1228, 1229 [2014], lv denied 24 NY3d 1044 [2014]). However, as part of this Court‘s weight of the evidence review, we necessarily determine whether all of the elеments of the charged crimes were proven beyond a reasonable doubt (see People v Valverde, 122 AD3d 1074, 1075 [2014], lv denied 27 NY3d 970 [2016]).
Taken together, the trial testimony of the CI and several law enforcement officers established that the CI telephоned a man she knew as “Black“—later identified as defendant—and made arrangements to meet him to purchase drugs. The CI was searched before the transaction and given audio transmission equipment and buy monеy consisting of two $20 bills that the police had photocopied. The CI then met defendant on the street and gave him the buy money in exchange for a quantity
Against his counsel‘s advice, defendant took the stand and testified that he received a phone call from a woman who asked him to meet her, rode his bicycle to the meeting location and engаged in “personal business” with the woman, after which he was stopped and arrested. He also testified that people on the streets knew him as Black. He now argues that his intent to sell the heroin was not proven, as no sale of heroin took place and the quantities of heroin and cash found on his person were too small to support an inference that he intended to sell the heroin rather than use it. However, it is possible to possess and intend to sell narcotics without actually completing a sale (see People v Mendoza, 300 AD2d 824, 824-825 [2002], lv denied 99 NY2d 617 [2003]). Here, the jury could infer defendant‘s intent to sell the heroin from the police testimony that it was packaged in a manner consistent with sale and from the other surrounding circumstances, including defendant‘s “saleslike conduct” in selling the cocaine (People v Sanchez, 86 NY2d 27, 35 [1995]). Such conduct also included the fact that the heroin was in the samе pouch that contained the cocaine that defendant sold to the CI, the CI‘s testimony that defendant had previously sold drugs to her on other occasions, and defendant‘s possession of the piecе of paper containing his street name and telephone number, which police testified was consistent with a “business card” advertising his availability as a drug dealer (compare People v McCoy, 59 AD3d 856, 857 [2009]). There was no evidencе that defendant personally used heroin or any other
We agree with defendant, however, that his convictions must be reversed because of the erroneous denial of his challenge for cause to a juror. During voir dire, one of the jurors told County Court that he knew several members of the District Attorney‘s staff, including an investigator with whоm the juror and his wife had been friends for over 30 years, two other individuals who had previously been named by the court as employees of the District Attorney‘s office, and an Assistant District Attorney in Schenectady County. The juror explained that he had strong connections in law enforcement; he had worked for a town police department in Schenectady County for almost 20 years, was a part-time patrol officer at the time of trial, had also worked as a road deputy in Schenectady County and was “the career fire chief” for a village in Schenectady County. Despite his affiliations with law enforcement, he repeatedly confirmed that he would be fair, would follow his oath, would not communicate with police officers or Assistant District Attorneys and had no concerns about “split obligations” arising from his experience in law enforcement or being able to judge the police work or the People‘s case fairly.
Defense counsel challenged the juror for cause, noting that the juror was an active member of law enforcement and that the investigator that the juror had identified as a friend was working on defendant‘s case and had already been present in the courtroom during the trial. The prosecutor confirmed that the investigаtor was working on the case and that he might appear in the courtroom. County Court denied the challenge on the ground that the juror had stated unequivocally that he would be fair and impartial.
There are сircumstances in which a prospective juror‘s assurances of impartiality are inadequate. A challenge for cause must be granted when the juror has a relationship with, as pertinent here, counsel fоr the People that is so close “that it is likely to preclude him [or her] from rendering an impartial verdict” (
The juror‘s mere status as a law enforcement officer, without more, would not necessarily have required his disqualification, nor would any relationship with a member of the District Attorney‘s staff that was “little more than a nodding acquaintance” (People v Provenzano, 50 NY2d 420, 425 [1980]; see People v Pickren, 284 AD2d 727, 727-728 [2001], lv denied 96 NY2d 923 [2001]; People v Butts, 140 AD2d 739, 741 [1988]). However, the juror described thе investigator as a “friend,” and said that their social relationship had endured for more than 30 years and was sufficiently close to include the juror‘s wife. While the juror did not specifically describe the recency or frequency of his contacts with this investigator, nothing in his description of their relationship suggested any recent lessening in the strength of this longstanding connection. Further, the investigator in question was working on defendant‘s case, hаd already appeared in the courtroom by the time the juror was questioned and, according to the prosecutor, might continue to be present during the trial.
“Nothing is more basic to the criminal procеss than the right of an accused to a trial by an impartial jury” (People v Branch, 46 NY2d at 652). This juror‘s long-established relationship could have “create[d] the perception that the accused might not receive a fair trial before аn impartial finder of fact” (People v Furey, 18 NY3d 284, 287 [2011]; accord People v Hamilton, 127 AD3d at 1247). As defendant exhausted his peremptory challenges before jury selection was complete, the erroneous denial of his challenge for cause requires reversal and a new trial (see People v Bedard, 132 AD3d 1070, 1071 [2015]; People v Smith, 52 AD3d 847, 847-848 [2008]; People v Clark, 125 AD2d 868, 869-870 [1986], lv denied 69 NY2d 878 [1987]; see also People v Greenfield, 112 AD3d at 1229-1230). This determination renders the remaining challenge to defendant‘s sentence academic.
Peters, P.J., Devine, Mulvey and Aarons, JJ., concur. Ordered that the judgment is reversed, on the law, and matter remitted to the County Court of Schenectady County for a new trial.