People v. WilliamsPeople v. Williams
Stephen W. Herrick, Public Defender, Albany (Jessica M. Gorman of counsel), for appellant.
P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), for respondent.
MEMORANDUM AND ORDER
Garry, P.J.
Appeals (1) from a judgment of the Supreme Court (Breslin, J.), rendered April 3, 2015 in Albany County, upon a verdict convicting defendant of the crime of criminal sale of a controlled substance in the third degree, and (2) by permission, from an order of said court, entered December 9, 2016 in Albany County, which denied defendant‘s motion pursuant to
Defendant was charged with criminal sale of a controlled substance in the third degree after a controlled transaction in
Defendant contends that the verdict was not supported by legally sufficient evidence and was against the weight of the evidence in that the People failed to prove his identity as the seller. The legal insufficiency claim is unpreserved, as defendant‘s motion for a trial order of dismissal was not specifically based upon the identification issue (see People v Gray, 86 NY2d 10, 19 [1995]; People v Green, 141 AD3d 1036, 1037 [2016], lv denied 28 NY3d 1072 [2016]). Nevertheless, defendant‘s challenge to the weight of the evidence requires this Court to determine whether each element of the charged crime was proven beyond a reasonable doubt (see People v Danielson, 9 NY3d 342, 348-349 [2007]; People v Scippio, 144 AD3d 1184, 1185 [2016], lv denied 28 NY3d 1150 [2017]).
At trial, a detective of the City of Albany Police Department (hereinafter the detective) testified that he met with the CI before the transaction and searched him to ensure that he was not carrying contraband. The CI then placed a telephone call to a person whom he called Crome, followed by an exchange of text messages. The detective listened to the telephone call and testified that he recognized the speaker‘s voice as that of defendant, whom he had met on several previous occasions. The detective then drove the CI to a spot near the prearranged location, equipped him with a digital recording device and gave him cash for the purchase. A second detective testified that he watched the CI constantly for about 20 minutes while he waited for defendant‘s arrival, and that the CI did not interact with anyone during this period. A vehicle that the detective described as “a gold Volvo XE 90 with chrome rims” then arrived at the designated location, and the CI got into the car
After the transaction, the CI returned to the detective‘s vehicle and handed over a substance that proved to be crack cocaine. A second search of his person revealed no contraband. Defendant was driving a different vehicle when he was arrested some eight months later, but the detective testified that the car contained paperwork from a Volvo dealership referencing the Volvo and including defendant‘s name. A third detective who did not participate in the controlled transaction testified that he later listened to an audio recording of the transaction and recognized the seller‘s voice as that of defendant, whom he had known since the mid-1990s and with whom he had previously interacted 50 to 100 times. He stated that defendant‘s voice was distinctive and identified him in court.
The CI‘s testimony about the transaction was consistent with that of the detectives. He stated that he had known defendant only as Crome until he learned defendant‘s name from police when he identified his photograph shortly before the transaction. He knew defendant‘s phone number because he had used it to contact him on previous occasions. He described the vehicle where the transaction occurred as a “jeep Volvo,” acknowledged that he had previously described it only as a “jeep” and stated that he was familiar with the vehicle because he had been in it “many times.” He identified defendant in court as the person whom he had formerly known as Crome and from whom he had bought drugs in the controlled transaction.
The CI testified that he had agreed to engage in the transaction because he “had two sales [himself]” and that he had received a favorable sentence in exchange for his cooperation. On cross-examination, he acknowledged that he was at risk of being sentenced as a persistent felon if he had not cooperated with police, that he had violated the terms of his contract by continuing to sell drugs while working as a CI and that police had nevertheless permitted him to continue to work for them. He also stated on cross-examination that he had obtained the drugs that he sold in the other transactions from defendant, and he added on redirect that he had purchased drugs from defendant
Defendant asserts that the detective‘s identification is unreliable because of the dark and distance, and further, that the identification testimony of the other witnesses is unworthy of belief. If the jury had accepted these arguments, a different verdict would not have been unreasonable. Thus, this Court must “weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” to determine whether the jury gave the evidence the weight that it should have been accorded (People v Scippio, 144 AD3d at 1185; accord People v Cruz, 152 AD3d 822, 823 [2017], lv denied 30 NY3d 1018 [2017]). Upon our review, deferring to the jury‘s credibility assessments and viewing the evidence in a neutral light, we are persuaded that the verdict is supported by the weight of the evidence (see People v Scott, 129 AD3d 1306, 1307 [2015], lvs denied 26 NY3d 1089, 1092 [2015]; People v Watkins, 121 AD3d 1425, 1426 [2014], lvs denied 24 NY3d 1123, 1124 [2015]).
We reject defendant‘s contention that the identification evidence should not have been admitted in the absence of a Rodriguez hearing to test the witnesses’ claims of prior familiarity with defendant. Defendant requested a Rodriguez hearing for the first time on the first day of trial. Supreme Court was authorized to summarily deny this untimely request, and, as defendant made no showing of good cause for the delay, the court did not abuse its discretion in declining to entertain the motion (see
Defendant next contends that he was denied a fair trial by Supreme Court‘s admission of alleged improper testimony. Initially, we reject the claim that the detective‘s testimony about his previous contacts with defendant was inadmissible. Contrary to defendant‘s assertion, no Molineux hearing was required, as the challenged testimony did not describe any uncharged crimes or bad acts; the detective merely stated that he had encountered defendant on several occasions before the controlled transaction, without mention of arrests or other crime-related conduct. Even if, as defendant suggests, the
Defense counsel elicited the first testimony from the CI relative to other drug purchases from defendant; counsel asked how many people he had bought drugs from while he was under contract with the police to act as a CI. We agree with Supreme Court that this questioning — which the CI answered by testifying that he had bought drugs from defendant and one other person — opened the door for the People to make further inquiry (see People v Smith, 157 AD3d 978, 980-981 [2018]). We note that the court permitted the People to ask only one question on this subject, sustained defendant‘s objection to additional questioning and promptly instructed the jury not to consider the testimony as evidence of a propensity to commit crime.
Defendant failed to preserve his appellate claim that the third detective‘s testimony about recognizing defendant‘s voice on the audio recording was improper bolstering, as he made no objection on that ground at trial (see People v Hughes, 114 AD3d 1021, 1023 [2014], lv denied 23 NY3d 1038 [2014]). To the extent that he also argues that the third detective‘s testimony about his many previous encounters with defendant was improperly prejudicial, Supreme Court did not err in overruling defendant‘s Molineux objection. As with the first detective, the challenged testimony provided background information explaining the third detective‘s ability to identify defendant‘s voice, and there was no reference to any crimes or bad acts. Even if we were to find that this testimony was improperly admitted, we would nonetheless find the error to be harmless, as the evidence against defendant was overwhelming (see People v Shortell, 155 AD3d 1442, 1444-1445 [2017], lv denied ___ NY3d ___ [May 16, 2018]; People v Kalina, 149 AD3d 1264, 1267 [2017], lv denied 29 NY3d 1092 [2017]).
Defendant‘s objection that the detective was improperly allowed to give hearsay testimony was unpreserved. Certain other testimony to which he now objects was stricken upon his objection. We have examined his remaining evidentiary objections and found them to be without merit.
We likewise reject defendant‘s contention that he was denied a fair trial by improper remarks during the prosecutor‘s summation. To the extent that defendant‘s appellate claims are preserved (see
By not raising it at sentencing, defendant failed to preserve his claim that his sentence was imposed in retaliation for exercising his constitutional right to trial (see People v Hurley, 75 NY2d 887, 888 [1990]; People v Haskins, 121 AD3d 1181, 1185 [2014], lv denied 24 NY3d 1120 [2015]). In any event, the fact that a sentence imposed after trial is longer than one offered in plea negotiations does not establish vindictiveness where, as here, nothing else in the record supports defendant‘s claim (see People v Massey, 45 AD3d 1044, 1048 [2007], lv denied 9 NY3d 1036 [2016]). Supreme Court declined the People‘s request to sentence defendant as a persistent felon, and the sentence imposed was less than the potential maximum (see
We note, however, that although Supreme Court referred to defendant at sentencing as a second felony offender, the record establishes that he was in fact sentenced as a second felony drug offender with a violent predicate felony (compare
Turning to the denial of defendant‘s
McCarthy, Clark, Rumsey and Pritzker, JJ., concur.
ORDERED that the judgment and order are affirmed, and matter remitted for entry of an amended uniform sentence and commitment form and an amended certificate of conviction.