| People v Williams |
| 2009 NY Slip Op 06293 [65 AD3d 484] |
| August 25, 2009 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v MarkWilliams, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Alice Wiseman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Charles J. Tejada, J.), rendered December 15,2003, convicting defendant, after a jury trial, of criminal possession of a controlled substance inthe second degree, and sentencing him, as a second felony offender, to a term of six years to life,unanimously affirmed.
On March 24, 2001, New York Police Department Sergeant David Ehrenberg wassupervising a group of detectives in an undercover narcotics operation, and, along with DetectiveDino Polichetti, was parked in an unmarked van on Riverside Drive between 136th and 137thStreets, when a white Mazda with New Jersey license plates parked in front of them, next to afire hydrant. The officers watched as defendant exited the Mazda's passenger side, and a manlater identified as Willy Allison exited the driver's side. The two men walked north to a stairwaywhich led to an underpass beneath Riverside Drive.
Approximately 15 minutes later, defendant and Allison returned to the Mazda, and lookedaround them before getting into the car and driving away. The Mazda drove north on RiversideDrive, then made a U-turn between 138th and 139th Streets, crossing over double yellow linesand pavement "zebra striping," which designated that crossing and turning were not permitted.
Ehrenberg and Polichetti then pulled away from the curb, made a U-turn, placed a red turretlight on the van's dashboard, and honked the van's horn (the van, a rental, had no siren).
Riding in the Mazda's passenger seat, defendant turned around and looked through the car'srear window at the unmarked van, which was following directly behind. Turning east onto 136thStreet, Allison drove the Mazda toward Broadway, where it came to a halt because of other carsstopped at a red light. At that point, defendant jumped out of the Mazda and ran south downBroadway. When defendant exited the car, Ehrenberg—who was still inside the unmarkedvan—was approximately five feet away, and could see that in his right hand, defendantcarried a clear plastic bag containing a white substance, which he suspected was cocaine.Ehrenberg jumped out of the van and gave chase on foot, displayed his shield and yelled that hewas a police officer.
As defendant ran past a laundromat located at 3357 Broadway, he threw the plastic bagthrough [*2]the open door. Continuing to give chase, Ehrenbergdid not see where the bag actually landed.
At 3333 Broadway, defendant ran toward a building entrance, but was stopped by a lockeddoor and security guards. Ehrenberg drew his gun and ordered defendant to the ground, anddefendant complied. With no prompting from Ehrenberg, defendant said, "What the f*** are youdoing? I have no drugs on me."
After other officers arrived at the scene, Ehrenberg returned to the laundromat, where he wasjoined by Detective Edward Paris. An unidentified laundromat patron pointed to a nearby dryer,atop which sat a clear plastic bag containing a white substance which resembled the bagEhrenberg had seen defendant throw into the laundromat. Subsequent testing revealed that thebag contained cocaine weighing slightly more than 2.25 ounces. There were other patrons in thelaundromat at the time, including several children.
Meanwhile, Detective Polichetti continued to chase the Mazda as Allison drove it recklesslydown Broadway, finally stopping the car after pointing his gun at Allison and pulling the van infront of the Mazda so that Allison could drive no farther.
Defendant did not testify, but Allison did. He testified that he and defendant had driven fromCliffwood, New Jersey, to New York City because Allison wanted to buy Timberland boots,which could be purchased for a good price in Manhattan. Allison parked his car on RiversideDrive between 136th and 139th Streets, then walked down a stairway toward Broadway,stopping along the way to drink some hot chocolate. Deciding they wanted to go to a restaurantbefore shopping, the two men then returned to the parked car.
Driving south on Riverside Drive, Allison made a legal left turn onto 136th Street, when heheard a screeching sound behind him, and, looking back, saw a van approaching. Allisonclaimed that he did not make a U-turn while on Riverside Drive. The van pulled beside theMazda, and its driver pointed a gun at Allison. The van did not display a red flashing light, andAllison had no reason to believe the two men inside of it were police officers.
Thinking he was being "carjacked," Allison attempted to escape. At some point, defendantjumped out of the Mazda and ran down the street. After attempting to elude the van for severalblocks, the van cut off the Mazda, forcing it to stop, whereupon a man with a gun approached,forced Allison to the ground, and began to search him. Only then did Allison realize he wasbeing pursued by police officers.
Though he was initially charged with traffic infractions and drug possession, the chargesagainst Allison were eventually dismissed.
At trial, Detective Manuel Soto testified that after the bag of cocaine was retrieved from thelaundromat, it was given to him for vouchering. Over objection, he also testified that the cocainehad a value of approximately $2,000, and could be used to make somewhere between 126 andalmost 200 packets of cocaine, which number would vary, according to the quality of thecocaine. He also testified, again over objection, that the cocaine could be made into crack bycrystallizing it. Crystallization would result in over one hundred "rocks." He was also permittedto testify that 2½ ounces of cocaine would likely result in death if consumed by oneindividual.
After testimony concluded for the day, and defense counsel voiced an objection for therecord, stating: "[F]or the purposes of the record I'm objecting to the line of questioningpertaining to how much the street value of the cocaine is, how many bags or how many pieces itcan be cut up into . . . . The defense in this case is not that these drugs [*3]were for [defendant's] own personal consumption. The defense isthat these drugs did not belong to [defendant]. Therefore, because there is no charge in theindictment of sale of narcotics or criminal possession with intent to sell, I am noting myobjection, for the record."
Thereafter, the People explained their position: "[I]f the defense is arguing that these are notthe defendant's drugs, we believe it is very relevant to know the value of the drugs to explainhow illogical it would be [that] another individual would have left over $2,000 worth of drugs ina laundromat unattended in that way. So it's in order to rebut the defense claim that these drugsthat were in the laundromat were not the defendant's drugs is the reason we brought that out,your Honor."
The court then allowed the testimony.
On summation, defense counsel argued that the police work was "sloppy" because the policedid not bring down to the station house an elderly man who had pointed out the cocaine in thelaundromat. Defendant further argued: "[T]his is not a situation where a police officer stops aperson and drugs are on the person. We know, we know whose drugs they are [in such asituation] if you believe that police officer. This is a situation where if you believe the lieutenant,the drugs were thrown. And you know what, they were not recovered until a substantial timelater. And you know what, how, how do you even know these are the very same drugs if youbelieve [Sgt. Ehrenberg] that came out of the hand of [defendant], how do we know that?"
Counsel suggested that the story about the patron had been fabricated, and that police wereactually combing the area in a random search for drugs, "looking for something to pin onsomebody. And they chose [defendant] because he got away, got out of the car, and he was alonewith the lieutenant."
Responding to counsel's summation, the prosecutor argued: "[D]efense counsel wants you tobelieve that they're not defendant's drugs. Ladies and gentlemen, they're not defendant's drugs.Some other drug dealer left $2,000 worth of drugs in a laundromat on top of a machine.Somebody else decided to do that on a Saturday morning at ten o'clock in the morning. Does thatmake sense, ladies and gentlemen? No, it defies common sense. The drugs that were recoveredare the exact same drugs the defendant threw in there just moments before."
Attempting to reconcile Sergeant Ehrenberg's testimony that defendant threw the bag ofcocaine into the entryway of the laundromat with the fact that the bag was recovered from atop adryer, the prosecutor argued that, "Clearly, the drugs were moved. There were children in there.They were playing, running around." The prosecutor continued, "We don't want them gettinginto the hands of children that were there that morning."[*4]
In addition, the prosecutor argued that, contrary todefendant's claim, the police work underlying defendant's arrest was not sloppy, but ratherremoved a quantity of cocaine from "the streets of New York, probably, more likely, the streetsof New Jersey, where he was going to take it." Defense counsel's objection to this statement wassustained. The prosecutor then continued, arguing that the police had done well not only inremoving the drugs from the streets, but also "in removing the individual, the defendant, whowas trying to place those drugs on the street." Defense counsel's objection to this statement wasoverruled. The prosecutor also stated with regard to the police conduct: "[The police] were outthere ladies and gentlemen, specifically to detect whether or not drugs were being distributed.They were out there doing that. And they were going to try to remove the individuals that werepossessing those drugs . . . . [W]e pay them to try and detect this kind of activity.And that's what they did on this day. They detected it and they removed the drugs from thestreets."
Defendant argues that the prosecutor violated his fundamental right to a fair trial bysuggesting that he was guilty of a crime for which he was not accused, i.e., sale of drugs, andprejudiced him by inciting the jury to convict on the basis of supposition, rather than theevidence adduced at trial. We find that the People's summation comments, to the extent theywere error, were harmless in light of the overwhelming evidence of defendant's guilt, and, in anyevent, although they could have been tempered, many were fair comment in response todefendant's charges that the police work was sloppy and that the police fabricated thecharges.[FN*]
Clearly, it would have been more prudent for the People not to refer to defendant as a drugdealer, since he was only charged with possession. Nevertheless, when defendant accused thepolice of fabrication and sloppy work, because of the serendipitous discovery of a large amountof drugs in the laundromat into which defendant had just minutes before, during a pursuit, tossedthe bag, the People were entitled to comment and respond. As much as anything, theludicrousness of defendant's contention spurred the response in which the People commentedderisively on the remarkable coincidence, at least according to defendant, that over two ouncesof cocaine were found in plain view in a laundromat that defendant had just passed as he ranfrom the police.
The emphasis on defendant's status as a drug dealer, neither alleged nor proven, may haveexceeded the bounds of fair comment and was better left unsaid, but "the over-all effect of theprosecutor's summation was within the range of acceptability" (People v D'Alessandro,184 AD2d 114, 119 [1992], lv denied 81 NY2d 884 [1993]), particularly since it wasdefendant who suggested first that he was a random and innocent victim of police officerslooking to [*5]connect the drugs to anybody in general. Thecomments certainly "did not amount to a persistent pattern of misconduct warranting reversal,particularly in light of the overwhelming evidence of defendant's guilt" (People vJohnson, 212 AD2d 362 [1995], lv denied 85 NY2d 939 [1995]). Defendant and hiscohort were first observed by police officers acting suspiciously both after they parked the car,and before they reentered it. After they made an illegal turn and the police put on the warninglight, they did not stop but hastened to make a getaway. After exiting the vehicle, and despitebeing warned of the presence of police officers, defendant continued to run, and discarded aplastic bag which he could just as easily have left in his car, if it did not contain contraband.When the bag was located in the proximate area where it was discarded, it was found to containcocaine. In light of such evidence, "there is not a significant likelihood" that the jury verdict,which was obviously the best barometer of the credibility of all the trial testimony, was undulyaffected by the prosecutor's categorization of defendant as a drug dealer or any of the otherquestionable comments (see People v Brown, 208 AD2d 414 [1994]).
Defendant also argues that testimony elicited by the prosecutor as to the value of the cocaineand the yield it could produce was irrelevant to the crime for which defendant was beingtried—criminal possession of a controlled substance in the second degree—and was"devastatingly prejudicial," as it suggested to the jury that defendant possessed the drugs with anintent to sell them. Yet, while irrelevant to the criminal charge against defendant, evidence of thecocaine's value and the number of doses it might yield was relevant to the question of whetherand to what extent it was plausible (or, conversely, highly unlikely) that a person other thandefendant might have left the bag of cocaine in the laundromat, as defendant claimed (see People v Giles, 11 NY3d 495,499 [2008]).
In her summation, defense counsel argued that police had fabricated the claim that theMazda made an illegal U-turn, and also argued that their stop of the Mazda was based upon amere hunch, and that what actually drew the officers' attention was defendant's race and theMazda's features.
In charging the jury, the trial court gave the following instruction: "[W]here a police officerhas probable cause to believe that a driver of a car has committed a traffic infraction, a stop doesnot violate the New York State Constitution. In making a determination of probable cause,neither the primary motivation of the officer nor a determination of what a reasonable trafficofficer would have done under the circumstances is relevant. Consequently, a violation of theVehicle and Traffic Law can give the police probable cause to warrant a stop of the vehicle for avalid traffic infraction."
During deliberations, the jury sent out a note asking whether "the definition of 'beyond areasonable doubt' applies to proving the 'probable cause' for attempting to pull [defendant andAllison] over." In response, the court recharged the jury: "[The] People only have to prove theelement[s] of the crime of criminal possession of [a] controlled substance in the second degree.And as I already instructed you, those elements must be proven beyond a reasonable doubt. ThePeople at trial do not have to prove probable cause."[*6]
On appeal, defendant argues that the Supreme Court'scharge that the police could stop the Mazda based upon their belief that a traffic infraction hadoccurred, without regard to whether there was a separate primary motive for the stop, requiresreversal because it improperly required the jury to determine the legal issue of probable cause,diverted the jury from a full consideration of the police officers' credibility, bolstered thePeople's case, and was unnecessary and unduly prejudicial. Yet, the jury charge was takenverbatim from People v Robinson (97 NY2d 341, 349 [2001]), and constitutes anaccurate statement of the law. Moreover, since defendant had suggested in his opening statementthat the stop was based upon racial profiling, the charge was necessary, since it explained that ifthe jury found credible the police testimony that the police observed an illegal U-turn, it couldfind that there was a legal justification for the stop. Otherwise, the jury might conclude thatnotwithstanding the traffic infraction, the stopping of the car by the police was unjustifiedbecause of racial profiling, to which defense counsel had made reference. We see no prejudice ina charge which permits the jury to understand the circumstances under which a police officermay stop a vehicle, particularly when defendant has suggested the possibility of illegal conduct.Concur—Mazzarelli, J.P., Sweeny, Nardelli, Freedman and Richter, JJ.
Footnote *: Defendant also argues that theprosecutor's eliciting of testimony about the methods of cutting drugs when cocaine is obtainedfrom a dealer and the toxicity, if ingested, was improper in this possession case. No basis existson this record to have elicited such testimony, and, in any event, the probative value, if therewere any, was outweighed by the potential prejudice. This line of questioning should have beenexcluded. Nonetheless, the permitting of such testimony does not warrant reversal because onlya limited number of questions were involved in a lengthy trial, and we find the error to beharmless.