| People v Jenkins |
| 2011 NY Slip Op 09215 [90 AD3d 1326] |
| December 22, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Joseph C.Jenkins, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Christopher D. Grace of counsel), forrespondent.
Egan Jr., J. Appeals (1) from a judgment of the County Court of Broome County (Cawley,J.), rendered March 12, 2010, upon a verdict convicting defendant of the crimes of criminal saleof a controlled substance in the second degree, criminal sale of a controlled substance in the thirddegree and criminal possession of a controlled substance in the third degree (two counts), and (2)from an order of said court, entered February 15, 2011, which denied defendant's motion to settlethe trial transcript.
In May 2008, Frank Kormos, an individual facing potential drug charges and seeking to curryfavor with the Broome County Sheriff's Department, agreed to arrange a controlled buy withdefendant. As a result of this successful transaction, defendant was indicted and charged withcriminal sale of a controlled substance in the second degree, criminal sale of a controlledsubstance in the third degree and criminal possession of a controlled substance in the third degree(two counts). Following the denial of defendant's motion to suppress the physical evidence seizedat the time of his arrest and a jury trial, defendant was convicted on all counts and sentenced toconcurrent prison terms of seven years on each count followed by a period of postreleasesupervision. Defendant's subsequent motion pursuant to CPLR 5525 (c) to settle the trialtranscript was denied, prompting these appeals.[*2]
Initially, we reject defendant's assertion that CountyCourt erred in denying his suppression motion. Probable cause for an arrest "exists when anofficer has knowledge of facts and circumstances sufficient to support a reasonable belief that anoffense has been or is being committed" (People v Maldonado, 86 NY2d 631, 635 [1995][internal quotation marks and citation omitted]; accord People v Parker, 84 AD3d 1508, 1509 [2011]; see People v Dowling, 75 AD3d838, 840 [2010], lv denied 15 NY3d 952 [2010]). "Such facts and circumstancesmust make it more probable than not that a crime has taken place and that the one arrested is itsperpetrator" (People v Parker, 84 AD3d at 1509 [internal quotation marks and citationsomitted]). In this regard, "[a]n arresting officer may rely on information obtained from a fellowofficer so long as the police as a whole were in possession of information sufficient to constituteprobable cause to make the arrest" (People v Sudler, 75 AD3d 901, 902 [2010], lv denied 15NY3d 956 [2010] [internal quotation marks and citations omitted]; see People v Douglas, 42 AD3d756, 758 [2007], lv denied 9 NY3d 922 [2007]; People v Bell, 5 AD3d 858, 859 [2004]).
Here, the record reflects that on the evening in question, Kormos agreed to contact defendant,an individual known to him as "Joe Man," and arrange to purchase a quantity of cocaine.Kormos—in the presence of Detective Sergeant Frederick Akshar and utilizing the speakerphone feature on his cell phone—contacted Joe Man, who agreed to meet Kormas in onehour on Medford Street, a dead-end street located in the City of Binghamton, Broome County,and sell him one half of an ounce of cocaine. Kormos described Joe Man as a light-skinned blackmale, who would be coming from the direction of the Village of Johnson City in Broome Countyand driving a "very nice black Audi." Approximately 25 minutes later, Joe Man called back andindicated that he was en route, at which time Akshar relayed the time and location of the buy, aswell as the description of Joe Man, the vehicle and the quantity of drugs to be sold, to his fellowofficers. At the appointed hour, a vehicle and individual matching that description stopped shortof the intersection of Medford and Saratoga Streets and was approached by Sergeant ChristopherBracco. As the vehicle started to move forward, Bracco drew his weapon and ordered theoccupant, whom he later identified as defendant, out of the car. A search of the vehicle revealed aplastic baggie containing a substance that subsequently tested positive for cocaine, and Kormosidentified defendant as Joe Man during a showup conducted at the scene. Such circumstances, inour view, provided the officers in question with a reasonable belief that defendant had agreedto—and was in fact at that location in order to—sell cocaine, thereby establishingprobable cause for his arrest (see People v Sudler, 75 AD3d at 902-903; People vDowling, 75 AD3d at 840).[FN*]
Although defendant characterizes Kormos as a confidential informant and argues that hisreliability was not sufficiently established, we disagree. As noted previously, Akshar was presentfor and overheard both sides of the conversation between Kormos and defendant, during thecourse of which defendant agreed to sell Kormos a quantity of cocaine. At that point, Akshar nolonger was relying or acting upon information provided by Kormos but, rather, upon informationobtained by the use of his own senses. Under these circumstances, we discern no need toindependently establish Kormos's reliability. Accordingly, defendant's suppression [*3]motion was properly denied.
Defendant next contends that the failure to transcribe the voir dire proceeding in its entiretymandates reversal of his conviction. Although we agree that "[v]erbatim recordation of the [trial]proceedings is the 'better practice', unless waived" (People v Harrison, 85 NY2d 794, 796[1995]), the case law makes clear that "the absence of a stenographic record does not, per se,require reversal of [a] defendant's conviction" (id. at 796; see People v Asencia,280 AD2d 678, 678-679 [2001]; People v Lane, 241 AD2d 763, 763 [1997], lvdenied 91 NY2d 875 [1997])—notwithstanding the seemingly absolute dictates ofJudiciary Law § 295. "Rather, a defendant must show that a request was made that the voirdire proceedings be recorded, the request was denied, and the failure to record the proceedingsprejudiced him or her in some manner" (People v Lane, 241 AD2d at 763 [citationsomitted]; see People v Rick, 224 AD2d 790, 790 [1996], lv denied 88 NY2d 852[1996]).
Here, although County Court's questioning of the panel of prospective jurors wasstenographically recorded, as well as counsels' ensuing challenges thereto (including the twoBatson objections) (see Batson v Kentucky, 476 US 79 [1986]), counsels'questioning of the panel was not. There is, however, no indication that defense counsel everrequested that the entire voir dire proceeding be recorded, nor is there anything in the record tosuggest that counsel and/or defendant somehow were lulled into believing that such transcriptionwas taking place. Further, defendant has failed to demonstrate any resultingprejudice—particularly in view of the fact that he did not respond to the People'srace-neutral explanation for excluding the jurors in question or otherwise assert that the reasonsfor their exclusion were pretextual, thereby failing to preserve any potential Batson issues(see People v Knowles, 79 AD3d16, 21 [2010], lv denied 16 NY3d 896 [2011]). Under such circumstances, reversalof the conviction on this ground is not warranted (see People v Asencia, 280 AD2d at679; People v Vasquez, 226 AD2d 932, 932-933 [1996], affd 89 NY2d 521[1997], cert denied sub nom. Cordero v Lalor, 522 US 846 [1997]; compare People vFleming, 221 AD2d 287, 287-288 [1995]).
As for defendant's related motion to settle the trial transcript, although we reject the People'sassertion that defendant cannot appeal the denial thereof (see People v La Motte, 276AD2d 931 [2000]; People v Hummer, 217 AD2d 713 [1995], lv denied 86 NY2d843 [1995]), we nonetheless agree that the motion was properly denied. As noted previously,defendant not only failed to request that voir dire be transcribed in its entirety but, moresignificantly, neglected to preserve any potential Batson issues. Under thesecircumstances, we agree that a reconstruction hearing would be pointless.
Finally, we find no merit to defendant's claim of ineffective assistance of counsel, which ispremised upon defense counsel's concession—in both his opening and closingstatements—that defendant was guilty of criminal possession of a controlled substance inthe third degree. "[S]uch defense tactics, whereby counsel admits guilt on a lesser charge in thehope that the jury would then be more receptive to the claim that the defendant was innocent ofthe far more serious offense and acquit him thereof, is a perfectly acceptable strategy whichshould not be second guess[ed] by the courts" (People v Hines, 46 AD3d 912, 913 [2007], lv denied 10NY3d 812 [2008] [internal quotation marks and citations omitted]; accord People v Goss,229 AD2d 791, 793 [1996]; see Peoplev Smith, 11 AD3d 899, 900-901 [2004], lv denied 3 NY3d 761 [2004];People v Procks, 258 AD2d 951, 952 [1999], lv denied 93 NY2d 976 [1999]).Notably, "[t]here is a distinction which can and must be drawn between[*4]. . . a tactical retreat and . . . a completesurrender" (People v Garrick, 11AD3d 395, 396 [2004], lv denied 4 NY3d 744 [2004] [internal quotation marks andcitation omitted]). Here, defense counsel made appropriate pretrial motions, extensivelycross-examined the People's witnesses, highlighted inconsistencies in their testimony andadvanced what we regard as a viable strategy in an attempt to stave off defendant's conviction ofa class A-II felony. Under these circumstances, we are satisfied that defendant receivedmeaningful representation. Defendant's remaining arguments, to the extent not specificallyaddressed, have been examined and found to be lacking in merit.
Peters, J.P., Spain, McCarthy and Garry, JJ., concur. Ordered that the judgment and order areaffirmed.
Footnote *: Although there is some disputeas to whether Bracco was present for the initial phone call and where such call took place,Akshar's testimony, if credited and when combined with the surrounding circumstances, issufficient to establish the required probable cause.