| People v Green |
| 2011 NY Slip Op 08846 [90 AD3d 1151] |
| December 8, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Eric A. Green,Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Broome County (Cawley, J.),rendered June 10, 2010, upon a verdict convicting defendant of the crime of criminal sale of acontrolled substance in the third degree (two counts).
In January 2009, defendant twice sold crack cocaine to an undercover officer working for theBroome County Sheriff's Department and, as a result, was indicted and charged with two countsof criminal sale of a controlled substance in the third degree. Following a jury trial, defendantwas convicted as charged and thereafter was sentenced as a second felony offender to concurrentprison terms of five years followed by three years of postrelease supervision. Defendant nowappeals.
We affirm. Although defendant requested a Darden hearing in his supplementalomnibus motion, that issue was neither pursued at the suppression hearing nor addressed inCounty Court's subsequent decision thereon. We therefore conclude that defendant effectivelyabandoned that branch of his motion and, in so doing, failed to preserve this issue for our review(cf. People v Bigelow, 68 AD3d1127, 1128 [2009], lv denied 14 NY3d 797 [2010]).
Defendant's assertion that the undercover officer's in-court identification of him should havebeen precluded due to the People's failure to file a CPL 710.30 notice also is not properly [*2]before us. By proceeding to a suppression hearing after his motionto preclude was denied, defendant waived any complaint regarding the absence of the statutorynotice (see People v Trimmer, 30AD3d 820, 822 [2006], lv denied 7 NY3d 818 [2006]; People v Wager, 19 AD3d 263,264 [2005], lv denied 5 NY3d 811 [2005]; cf. People v Sturdevant, 74 AD3d 1491, 1492 [2010], lvdenied 15 NY3d 810 [2010]). Moreover, the undercover officer's viewing of a "target"photograph prior to the two drug transactions did not constitute an identification of defendant(see People v Diakite, 296 AD2d 655, 656 [2002], lv denied 99 NY2d 535[2002]; People v Williams, 221 AD2d 953, 953-954 [1995], lv denied 87 NY2d926 [1996]), and the officer's subsequent viewing of defendant's postarrest booking photographwas undertaken solely to confirm that the arresting officers had in fact apprehended the correctindividual (see People v Gilmore,72 AD3d 1191, 1193 [2010]; People v Trimmer, 30 AD3d at 822). Under thesecircumstances, no CPL 710.30 notice was required.
As to the conviction itself, the undercover officer testified that, utilizing a cell phone numberprovided by a confidential informant, he contacted an individual known as"Prez"—subsequently identified as defendant—on January 9, 2009 and arranged topurchase a quantity of crack cocaine for $50.[FN*]In accordance with defendant's instructions, the officer drove to a gas station in the City ofBinghamton, Broome County and again contacted defendant on his cell phone, whereupondefendant told the officer to start driving down a nearby street. While en route, the officer spotteddefendant on foot. The officer pulled over, defendant climbed into the front passenger seat of thevehicle and thereafter sold the officer two plastic knotted wraps containing a white chunkysubstance subsequently identified as cocaine. After the sale was completed, the officer compliedwith defendant's request to drive him to the Village of Johnson City, Broome County beforereturning to the original pickup location.
A similar series of events transpired three days later, when the officer again contacteddefendant on his cell phone and expressed an interest in making another purchase. As on theprior occasion, the officer was directed to proceed to the gas station and call defendant for furtherinstructions. After speaking with defendant and proceeding to the appointed location, defendantand an unidentified male entered the officer's vehicle, and defendant again sold the officer aknotted bag of a substance later identified as cocaine.
Based upon his observations of defendant during the two drugtransactions—particularly the approximately 30 minutes that the officer spent withdefendant during the first transaction—the officer unequivocally identified defendant asthe person who sold him drugs on the days in question. Additionally, a forensic scientist from theState Police Crime Lab testified and confirmed that the substance seized from defendant andreceived for testing contained cocaine.
Criminal sale of a controlled substance in the third degree requires proof that defendant [*3]knowingly and unlawfully sold a narcotic drug (see PenalLaw § 220.39 [1]; § 220.00 [7]). Viewing the evidence in the light most favorable tothe People (see People v Folk, 44AD3d 1095, 1097 [2007], lv denied 9 NY3d 1006 [2007]), we are satisfied that theverdict is supported by legally sufficient evidence (see People v Young, 86 AD3d 796, 798 [2011]; People v Rolle, 72 AD3d 1393,1396 [2010], lv denied 16 NY3d 745 [2011]). Further, "upon our independent review ofthe record, and in evaluating the evidence in a neutral light and according appropriate deferenceto the jury's assessment of witness credibility, we find that the verdict . . . is notagainst the weight of the evidence" (People v Rolle, 72 AD3d at 1396; see People vFolk, 44 AD3d at 1097).
We also find no merit to defendant's claim that the People failed to establish a proper chainof custody with respect to the cocaine purchased on the dates in question. The testimony offeredby the undercover officer, his partner, the evidence custodian at the Binghamton PoliceDepartment and the forensic scientist at the State Police Crime Lab regarding the procedures forlogging, sealing, securing and testing the cocaine purchased from defendant provided "thenecessary reasonable assurances of the identity and unchanged condition of the drugs toauthenticate that evidence" (People vDanford, 88 AD3d 1064, 1067 [2011]), thereby establishing an "unbroken chain" ofcustody (People v Long, 9 AD3d495, 498 [2004]).
Defendant next contends that County Court abused its discretion in responding to a questionposed by the jury during deliberations—namely, "Who said 'I saw [defendant] get in thecar'?" In response to this inquiry and over defense counsel's objection, County Court advised thejury, "that was [the undercover officer]," and further noted that the undercover officer's partnertestified as to his observations of the "target." County Court's statements in this regard, which arefully supported by and consistent with the testimony offered by the respective witnesses,constitute a meaningful response to the jury's inquiry and did not amount to an abuse of thecourt's discretion (see People vArce, 70 AD3d 1196, 1197-1198 [2010]; People v Carpenter, 52 AD3d 1050, 1050-1051 [2008], lvdenied 11 NY3d 735 [2008], cert denied 556 US —, 129 S Ct 1613 [2009]).
Finally, we find no merit to defendant's pro se claim of ineffective assistance of counsel. Tothe extent that defendant takes issue with counsel's failure to pursue a Darden hearing,the failure to request—or in this case pursue—a particular pretrial hearing does not,standing alone, constitute ineffective assistance of counsel (see People v Fulwood, 86 AD3d 809, 811 [2011]; People v Evans, 81 AD3d 1040,1041 [2011], lv denied 16 NY3d 894 [2011]). Moreover, the record reflects that counsel,among other things, vigorously and effectively cross-examined the People's witnesses,challenged the chain of custody and testing procedures employed and presented cogent andappropriate opening and closing statements. Under these circumstances, we are satisfied thatdefendant received meaningful representation (see People v Fulwood, 86 AD3d at 811;People v Casey, 61 AD3d1011, 1014 [2009], lv denied 12 NY3d 913 [2009]). Defendant's remainingcontentions, to the extent not specifically addressed, have been examined and found to be lackingin merit.
Mercure, A.P.J., Spain, Lahtinen and Malone Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: To the extent that defendantargues in his pro se brief that the officer should not have been permitted to testify regarding hisefforts to contact defendant's cell phone when the phone itself had been suppressed, we need noteonly that no objection was lodged as to the officer's testimony on this point and, hence, this issueis not preserved for our review (seePeople v Abrams, 73 AD3d 1225, 1227 [2010], affd 17 AD3d 760 [2011]; People v Brooks, 26 AD3d 596,597 [2006]).