| People v Stevens |
| 2011 NY Slip Op 06146 [87 AD3d 754] |
| August 4, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JermellStevens, Also Known as Murder, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Schenectady County(Giardino, J.), rendered June 4, 2008, upon a verdict convicting defendant of the crimes ofcriminal sale of a controlled substance in the third degree and criminal possession of a controlledsubstance in the third degree.
Defendant was charged in a two-count indictment with criminal sale of a controlledsubstance in the third degree and criminal possession of a controlled substance in the thirddegree. These charges arose from a controlled buy of cocaine that occurred between defendantand a confidential informant (hereinafter CI) in the City of Schenectady, Schenectady County onJuly 17, 2007. Following a trial, a jury found defendant guilty of the charges in the indictment.Defendant was then sentenced, as a second felony offender, to 10 years in prison and two years ofpostrelease supervision on each count, to run concurrently. Defendant appeals.[*2]
Initially, defendant challenges the weight and legalsufficiency of the evidence.[FN*] Upon a review of the record, we are satisfied that the People established beyond a reasonabledoubt that defendant both knowingly and unlawfully possessed cocaine with the intent to sell itand knowingly and unlawfully sold cocaine (see Penal Law § 220.16 [1]; §220.39 [1]). Testimony at trial established that, in July 2007, the CI told an investigator with theDivision of Parole that an individual operating under the street name "Murder" was selling drugsout of the CI's residence. Defendant was identified as this individual and, after confirmingdefendant's identity with the CI, the investigator and a detective from the Schenectady CountySheriff's Department arranged for the CI to complete a controlled buy from defendant. Thesubstance bought from defendant by the CI was determined to be cocaine. Although defendantcontends that the evidence does not conclusively establish that he was the seller, the CI madein-court and out-of-court identifications of him and, at trial, testified that he was able to identifydefendant as the seller because defendant had occupied his apartment for a period of time andbecause he had previously purchased drugs from defendant. In addition, the CI's identification ofdefendant as the seller was corroborated by the testimony of the police involved in the controlledbuy operation and by the evidence discovered during the execution of a search warrant in theresidence where defendant was located (see People v Lawal, 73 AD3d 1287, 1289 [2010]; People v Chatham, 55 AD3d 1045,1046 [2008], lv denied 14 NY3d 839 [2010]). Under these circumstances, we cannot saythat the verdict is against the weight of the evidence.
Next, the testimony at the suppression hearing demonstrated that, contrary to defendant'scontention, the pretrial identification procedure was reasonable and not unduly suggestive. Thephotographs in the array that was shown to the CI depict men of the same race and approximateage as defendant and appear with similar haircuts and facial hair (see People v Ramos, 48 AD3d984, 987 [2008], lv denied 10 NY3d 938 [2008], cert denied 556 US—, 129 S Ct 1595 [2009]; Peoplev Rumrill, 40 AD3d 1273, 1274 [2007], lv denied 9 NY3d 926 [2007]), and theCI was instructed to disregard any differences in the style of the photographs (see People vLawal, 73 AD3d at 1288). We are not persuaded that the identification was undulysuggestive because the CI had been shown a photograph of defendant by the investigator prior tothe controlled buy. The two photographs were different, and there was no indication that theinvestigator showed the photograph to the CI to be suggestive. Moreover, because the CI wasindependently familiar with defendant, his identification of defendant as the perpetrator wasmerely confirmatory, and there was little risk that any alleged suggestiveness led to amisidentification (see People vSanchez, 75 AD3d 911, 912 [2010], lv denied 15 NY3d 895 [2010]).
Next, County Court did not err by admitting evidence of defendant's prior uncharged crimesand other background information. The evidence regarding defendant's activities, the [*3]activities of defendant's organization, his street name and prior drugsales was relevant information to establish defendant's identity and absence of mistake (see People v Giles, 11 NY3d 495,499 [2008]; People v Molineux, 168 NY 264, 293 [1901]) and provided necessarybackground information with respect to defendant's relationship with the CI (see People v Tarver, 2 AD3d 968,969 [2003]). The court properly mitigated the prejudicial effect of this evidence by specificallylimiting the testimony that the People were able to elicit at trial and by giving appropriatelimiting instructions to the jury (seePeople v Garcia, 33 AD3d 1050, 1051 [2006], lv denied 9 NY3d 844 [2007]).
Defendant's contentions that County Court improperly admitted into evidence a digital scale,an audio recording of the controlled buy and testimony regarding cash that was discovered indefendant's pocket are unpreserved because he did not object to the court's rulings at trial (see People v Peele, 73 AD3d1219, 1221 [2010], lv denied 15 NY3d 894 [2010]). Due to his failure to make theparticular arguments before County Court, also unpreserved for our review are defendant'scontentions that there was insufficient probable cause for his warrantless arrest because theinformation the police received from the CI failed the Aguilar-Spinelli test (see People v High, 18 AD3d 775,775 [2005], lv denied 5 NY3d 789 [2005]) and that there was prosecutorial misconduct(see People v Henry, 64 AD3d804, 806 [2009], lv denied 13 NY3d 860 [2009]). Finally, we are not convinced bydefendant's contention that he was deprived of the right to a fair trial as a result of the cumulativeeffect of the aforementioned alleged errors.
Peters, J.P., Rose, Lahtinen and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Defendant's argument regardingthe legal sufficiency of the evidence is unpreserved because his motion to dismiss was notspecifically directed at the errors now alleged (see People v Gray, 86 NY2d 10, 19-22[1995]). Nevertheless, the evidence adduced at trial as to each of the elements of the crimes isnecessarily reviewed in the context of defendant's challenge to the weight of the evidence, whichneed not be preserved (see People vGonzalez, 64 AD3d 1038, 1040 [2009], lv denied 13 NY3d 796 [2009]).