People v. NelsonPeople v. Nelson
MEMORANDUM AND ORDER
Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered April 25, 2014, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the fourth degree.
On September 16, 2013, a vehicle in which defendant was a passenger was stopped by a state trooper for suspected violations of the Vehicle and Traffic Law. Upon activating his emergency lights just prior to the stop, the trooper noticed one of the backseat passengers leaning forward and reaching down, as if to hide something underneath the driver‘s seat. Once stopped, the trooper approached and, when the operator of the vehicle was unable to produce her driver‘s license, she was asked to step out of the vehicle. In response to questioning by the trooper, the operator indicated that the group was traveling to Vermont but that she did not know the other four occupants of the vehicle. His suspicions aroused, the trooper requested identification from all occupants of the vehicle. Noting a strong odor of marihuana when the rear driver‘s side passenger rolled down his window, the trooper asked for and obtained the driver‘s consent to search the vehicle. Such search of the vehicle resulted in the discovery of 587 glassine packets of heroin in a purse located on the floor of the backseat, as well as a small amount of marihuana in the trunk.
Defendant was subsequently charged by indictment with two counts of criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fourth degree and unlawful possession of marihuana in the fourth degree. Following a Mapp hearing, County Court denied defendant‘s motion to suppress the drugs, finding that the initial stop was justified and that the driver‘s consent to search the vehicle was voluntary and reasonably encompassed the purse on the backseat floor. The unlawful possession of marihuana charge was dismissed during the ensuing jury trial, at the conclusion of which defendant was convicted of the remaining charges. He was sentenced, as a second felony drug offender, to an aggregate prison term of 15 years followed by three years of postrelease supervision. Defendant appeals.
County Court properly denied defendant‘s suppression motion. Defendant does not dispute that the trooper had authority to stop the vehicle due to, among other things, its excessively loud muffler (see
For the first time on appeal, defendant now argues that the driver lacked actual or apparent authority to consent to a search of the purse, which was later determined to belong to a female backseat passenger (see generally People v Gonzalez, 88 NY2d 289 [1996]). By not raising this argument before the suppression court, defendant has failed to preserve the issue for our review (see
Defendant also asserts that the verdict is not supported by legally sufficient evidence and is against the weight of the evidence, specifically claiming that the People failed to prove his possession of the heroin and its aggregate weight.
Turning first to the issue of possession, the People‘s case was predicated on the automobile presumption contained in
Defendant‘s contention that the testimony did not adequately establish the weight of the heroin is likewise without merit. The forensic scientist who testified used an acceptable statistical sampling method to establish the aggregate weight of the heroin, which method was fully explained to the jury, and all of the glassine envelopes were admitted into evidence for the jury‘s inspection (see People v Hill, 85 NY2d 256, 261 [1995]). Under these circumstances, “it was for the jury to decide whether the expert had adequately analyzed and weighed the contents and whether [her] opinion was entitled to be credited” (id. at 261 [internal quotation marks and citations omitted]; see People v Argro, 37 NY2d 929, 930 [1975]; People v Bolden, 70 AD3d 1352, 1352-1353 [2010], lv denied 14 NY3d 838 [2010]; People v Caba, 23 AD3d 291, 292-293 [2005], lv denied 6 NY3d 810 [2006]). Together with the stipulated nature of the substances recovered and the unchallenged proof establishing defendant‘s intent to sell, the evidence was legally sufficient to support each conviction (see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Tabb, 12 AD3d at 952)1. Having also evaluated the evidence in a neutral light while
Nor do we discern any error in County Court‘s decision to allow the People to utilize the September 18, 2013 unsworn statement of Anna Garrow, one of the backseat passengers, in lieu of her live testimony. A witness‘s out-of-court statements may be admitted as part of the People‘s direct case where the People “demonstrate by clear and convincing evidence that the defendant, by violence, threats or chicanery, caused [the] witness‘s unavailability” (People v Cotto, 92 NY2d 68, 75-76 [1998]; see People v Smart, 23 NY3d 213, 220 [2014]; People v Geraci, 85 NY2d 359, 365-366 [1995]). “This forfeiture rule . . . is based on sound public policy meant to prevent the defendant from taking advantage of his or her own wrongdoing and to protect the integrity of the proceedings by deterring the defendant from acting on the strong incentive to tamper with adverse witnesses” (People v Smart, 23 NY3d at 220 [citation omitted]; see People v Dubarry, 25 NY3d 161, 174 [2015]; People v Maher, 89 NY2d 456, 461 [1997]). “Recognizing the surreptitious nature of witness tampering and that a defendant engaging in such conduct will rarely do so openly, resorting instead to subterfuge, the court can rely on and the prosecution can use circumstantial evidence in making the requisite determination” (People v Chestnut, 149 AD3d 772, 773 [2017] [internal quotation marks and citations omitted], lv denied 29 NY3d 1077 [2017]; see People v Smart, 23 NY3d at 220-221; People v Cotto, 92 NY2d at 76-77).
We reject defendant‘s assertion that, regardless of any demonstration of misconduct on his part, Garrow could not be deemed “unavailable” inasmuch as she appeared at trial and was willing to testify. “Unavailability” in this context is not limited to a witness‘s outright refusal to testify or physical absence from the proceedings; a witness is practically or effectively unavailable where the witness recants his or her initial statements or otherwise changes his or her version of the events as a result of misconduct on the part of the defendant (see People v Cotto, 92 NY2d at 73-74; People v Walker, 153 AD3d 861, 861 [2017], lv denied ___ NY3d ___ [Nov. 21, 2017]; People v Turner, 143 AD3d 566, 567 [2016], lv denied 28 NY3d 1151 [2017]; People v White, 4 AD3d 225, 226 [2004], lv denied 3 NY3d 650 [2004]). “To deem a testifying, but recanting witness ‘available’ for Confrontation Clause purposes, as defendant suggests, would provide witness tamperers with an incentive to induce witnesses to recant rather than to refrain from testifying at all” (People v White, 4 AD3d at 226).
As to the merits, “the cumulative evidence and the inferences that logically flow therefrom were sufficient to support a determination by a rational fact finder, under the clear and convincing evidence standard, that defendant . . . was responsible for . . . the conduct that rendered [Garrow] unavailable for trial” (People v Geraci, 85 NY2d at 370; accord People v Rankin, 127 AD3d 1335, 1337 [2015], lvs denied 26 NY3d 1144, 1149 [2016]). When Garrow‘s trial testimony began to deviate from the statements that she had previously given to the prosecution, County Court suspended her testimony and granted the People‘s request for a Sirois
Contrary to defendant‘s further claim, Garrow‘s September 2013 statement was not “so devoid of reliability as to offend due process” (People v Cotto, 92 NY2d at 78). The statement was made only days after the incident, prior to any opportunity for collusion, and, in it, Garrow implicates herself in the subject crimes and makes other statements against her penal interest (see id.; see also People v James, 93 NY2d 620, 641-642 [1999]). Nor did County Court abuse its discretion in precluding defendant from introducing a subsequent statement given by Garrow to police (see People v Bosier, 6 NY3d 523, 528 [2006]; People v Lovett, 18 AD3d 577, 577 [2005], lv denied 5 NY3d 765 [2005]; People v Pace, 300 AD2d 1071, 1072 [2002], lvs denied 99 NY2d 617, 618 [2003]).
Finally, we do not find defendant‘s sentence to be harsh or excessive. Despite his relative youth, defendant has amassed a criminal record, including a prior violent felony conviction, and was on parole supervision at the time that he committed the instant offenses. Given these facts, as well as the serious nature of these crimes and defendant‘s failure to accept responsibility for his conduct, we discern no abuse of discretion or extraordinary circumstances that would warrant a reduction of the sentence in the interest of justice (see People v Slaughter, 150 AD3d 1415, 1418 [2017]; People v Harvey, 96 AD3d 1098, 1101 [2012], lv denied 20 NY3d 933 [2012]). Further, “[t]he fact that the sentence imposed is longer than one rejected during plea negotiations does not establish that defendant was punished for exercising his constitutional right to trial” (People v Serrano-Gonzalez, 146 AD3d 1013, 1017 [2017] [internal quotation marks and citations omitted], lv denied 29 NY3d 952 [2017]; see People v Lancaster, 143 AD3d 1046, 1054 [2016], lv denied 28 NY3d 1147 [2017]). Defendant‘s remaining claims, including his assertion that he received the ineffective assistance of counsel, have been reviewed
Egan Jr., Lynch, Clark and Rumsey, JJ., concur.
ORDERED that the judgment is affirmed.