| People v Roberts |
| 2011 NY Slip Op 00045 [80 AD3d 787] |
| January 6, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ShawnRoberts, Also Known as Jay, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered September 18, 2008, upon a verdict convicting defendant of the crimes of criminal saleof a controlled substance in the third degree (three counts), assault in the second degree andtampering with a witness in the third degree.
On three separate occasions, the last being on November 9, 2007, defendant was alleged tohave sold narcotics to an informant working for the police in a drug investigation they wereconducting in the City of Watervliet and Town of Colonie in Albany County. After the third sale,defendant was arrested and charged with three counts of criminal sale of a controlled substancein the third degree. While on bail, defendant confronted the informant, accused him ofcooperating with the police and, in an attempt to intimidate him, restrained the informant whileanother individual—Ian Greene—stabbed him in the neck with a hot fork.[FN1]As a result of this [*2]incident, defendant was also charged withtwo counts of robbery in the second degree, assault in the second degree and tampering with awitness in the third degree. After a jury trial, defendant was convicted of the three counts ofcriminal sale of a controlled substance in the third degree, as well as the assault and tamperingwith a witness charges, and sentenced as a second felony offender to an aggregate prison term of37 years, with various terms of postrelease supervision. Defendant now appeals.
Initially, defendant maintains that County Court improperly denied his motion to dismiss theindictment on the ground that he did not receive timely notice regarding the presentation of thesecharges to a grand jury. We disagree. CPL 190.50 (5) (a) requires the prosecution to "accord [a]defendant a reasonable time to exercise his [or her] right to appear as a witness" in a grand juryproceeding where a defendant has been arraigned in local criminal court on charges that will besubsequently presented to a grand jury. However, a motion challenging the reasonableness of thenotice provided to the defendant must be made no later than five days after the defendant hasbeen arraigned on the indictment (see CPL 190.50 [5] [c]; People v Rolle, 72 AD3d 1393,1395 [2010]; accord People vLittebrant, 55 AD3d 1151, 1153 [2008], lv denied 12 NY3d 818 [2009]). Here,defendant's motion was untimely, as it was not made until February 21, 2008—more thanfive days after his February 13 arraignment on the indictment—and, therefore, it wasproperly denied (see People vKinlock, 57 AD3d 1227, 1227 [2008]; People v Boodrow, 42 AD3d 582, 583-584 [2007]; People v Wright, 5 AD3d 873, 874[2004], lv denied 3 NY3d 651 [2004]).
Defendant also claims that County Court erred by denying his motion to suppress evidencetaken from his person at the time of his arrest. Defendant was arrested by Lieutenant EdwardWatson of the Watervliet Police Department shortly after the last drug transaction with theinformant took place. Watson had previously participated in surveilling defendant in connectionwith the two prior drug sales he had with the informant and, earlier that day, listened as theinformant telephoned defendant and made arrangements for this last purchase. Watson observeddefendant enter the informant's home and leave shortly thereafter. Watson then followeddefendant's vehicle for a short distance and then stopped him after being told by another policeofficer monitoring the transaction that the informant had purchased a white, chunky substancefrom defendant. Watson placed defendant under arrest, searched him and, from his person,recovered the prerecorded money used by the informant to purchase the cocaine and the cellphone the informant had called to make arrangements for this sale. These observations, coupledwith communications that Watson received from the other police officer participating in thisinvestigation, provided a legal basis for defendant's arrest and a contemporaneous search of hisperson (see People v Ramirez-Portoreal, 88 NY2d 99, 113 [1996]; People v Dowling, 75 AD3d 838,840 [2010]; People v Douglas, 42AD3d 756, 758 [2007], lv denied 9 NY3d 922 [2007]).
Watson did not immediately charge defendant with the November 9, 2007 sale but, instead,turned defendant over to the Colonie Police Department so that he could be charged with anearlier drug sale that had taken place prior to his arrest. Defendant, in essence, claims that by notimmediately charging him with the sale for which he was arrested, Watson forfeited the right toconduct a search incident to a legal arrest. However, simply because Watson waited several daysbefore formally charging defendant with the drug sale for which he had been arrested does [*3]not alter the fact that Watson, at the time he conducted the search,had probable cause to believe that defendant had just participated in an illegal sale of narcotics.Therefore, Watson's arrest of defendant was legal and defendant's motion to suppress wasproperly denied (see People vRuppert, 42 AD3d 817, 818 [2007], lv denied 9 NY3d 964 [2007]; People v Ormsby, 30 AD3d 757,758 [2006], lv denied 7 NY3d 816 [2006]).
Defendant also claims that he was denied the right to be present at side bar conferencesconducted by County Court during the trial. While a defendant has the right to be present at suchconferences (see People vVelasquez, 1 NY3d 44, 47-48 [2003]; People v Antommarchi, 80 NY2d 247,250 [1992]; People v Horan, 290 AD2d 880, 883-884 [2002], lv denied 98 NY2d638 [2002]), the record establishes that defendant waived that right through his counsel in opencourt and failed to object when side bar conferences were conducted in his absence (see People v Williams, 15 NY3d739, 740 [2010]; People v Velasquez, 1 NY3d at 49; People v Jackson, 52 AD3d 1052,1053 [2008], lv denied 11 NY3d 789 [2008]).
Finally, defendant argues that his sentence was harsh and excessive and that the aggregate30-year sentence imposed on his drug convictions should be reduced.[FN2]While the sentence that defendant received on his drug convictions fell within the permissiblestatutory range (see Penal Law § 70.70 [3] [b] [i]), it was significantly higher thanthe two-year sentence he was offered to satisfy the drug charges during plea negotiations prior totrial.[FN3]The quantity of cocaine that was the subject of these transactions does not, in our view, justifythe significant disparity that exists between the sentence offered on these charges during pleanegotiations and that imposed after trial (see generally People v Perry, 70 AD3d 1063, 1065 [2010], lvdenied 14 NY3d 804 [2010]; Peoplev Nealon, 36 AD3d 1076, 1079 [2007], lv denied 8 NY3d 988 [2007]).Moreover, this offer was made to defendant while the charges alleging he assaulted andattempted to intimidate a witness for the prosecution were pending before County Court and, onthose charges, defendant received substantial, and in our view, appropriate prison terms, whichare to be served consecutively to the sentence that defendant received on his drug convictions.Therefore, defendant's sentence for each conviction of criminal sale of a controlled substance inthe third degree shall be reduced to six years, to be served consecutively with each other as wellas consecutively with the sentences imposed on his other two convictions. Defendant's remainingclaim that he was denied the effective assistance of counsel before trial has been reviewed andfound to be lacking in merit.
Peters, J.P., Rose, Lahtinen and Egan Jr., JJ., concur. Ordered that the judgment is modified,as a matter of discretion in the interest of [*4]justice, by reducingthe sentences imposed for criminal sale of a controlled substance in the third degree under countssix, seven and eight of the indictment to six years, and, as so modified, affirmed.
Footnote 1: Greene's conviction for assaultin the second degree, criminal possession of a weapon in the third degree and tampering with awitness in the third degree has been affirmed by this Court (People v Greene, 72 AD3d 1279 [2010], lv denied 15NY3d 749 [2010]).
Footnote 2: He received a 10-year prisonterm for each drug conviction, to be served consecutively.
Footnote 3: During those plea negotiations,he was also offered a six-year prison sentence, with five years of postrelease supervision, inexchange for his guilty plea to assault in the second degree, in satisfaction of all charges relatingto the assault and intimidation of the informant.