| People v Jones |
| 2012 NY Slip Op 08573 [101 AD3d 1241] |
| December 13, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Shelton C.Jones, Appellant. |
—[*1] Richard D. Northrup Jr., District Attorney, Delhi (John L. Hubbard of counsel), forrespondent.
Rose, J. Appeals (1) from a judgment of the County Court of Delaware County (Becker, J.),rendered February 28, 2011, upon a verdict convicting defendant of the crime of criminal sale ofa controlled substance in the third degree, and (2) by permission, from an order of said court,entered November 28, 2011, which denied defendant's motion pursuant to CPL 440.10 to vacatethe judgment of conviction, without a hearing.
Defendant was arrested and charged with two counts of criminal sale of a controlledsubstance in the third degree based upon the allegations of a confidential informant (hereinafterCI) that she had twice purchased cocaine from him. After a jury trial, defendant was convicted ofone count, acquitted of the other and sentenced to eight years in prison with three years ofpostrelease supervision. He now appeals from the judgment and, by permission, from the denialof his pro se motion to vacate the judgment pursuant to CPL 440.10.[FN*][*2]
Defendant's challenge to the legal sufficiency of theevidence is unpreserved for our review, as he did not move for a trial order of dismissal. We will,however, necessarily evaluate whether the elements of the crime were adequately proven as partof our review of the weight of the evidence (see People v Danielson, 9 NY3d 342, 349 [2007]; People v Harvey, 96 AD3d 1098,1099 n [2012]; People v Perez, 93AD3d 1032, 1038 [2012], lv denied 19 NY3d 1000 [2012]). Here, the CI testifiedthat she agreed to engage in controlled drug buys in exchange for leniency with respect to felonycharges pending against her. The CI knew defendant from having purchased drugs from himbefore at the apartment where defendant stayed when he was in town. The CI and the policedetective who supervised the two drug buys testified to the procedure that they followed inpreparing the CI and transporting her to the location of the apartment. She testified that shepurchased cocaine from defendant for $55 and then delivered it directly to the detective, whotestified that he performed a positive field test. The police laboratory test results confirming thatthe substance was cocaine were stipulated into evidence. Thus, the CI's testimony established thatshe purchased cocaine from defendant. Contrary to defendant's argument, the minorinconsistencies in her testimony are inconsequential and do not render it unworthy of belief orincredible as a matter of law (see Peoplev Arnold, 85 AD3d 1330, 1332 [2011]; People v Tarver, 292 AD2d 110, 114[2002], lv denied 98 NY2d 702 [2002]). The CI's lengthy criminal history was fullyexplored on cross-examination and, providing appropriate deference to the jury's ability to viewthe witnesses and determine their credibility, we find no basis to disturb the verdict as against theweight of the evidence (see People vJohnson, 91 AD3d 1115, 1117 [2012], lv denied 18 NY3d 959 [2012]; People v Green, 90 AD3d 1151,1153-1154 [2011], lv denied 18 NY3d 994 [2012]; People v Terry, 85 AD3d 1485, 1487 [2011], lv denied 17NY3d 862 [2011]).
Defendant also contends that he was denied a fair trial due to the CI's testimony that she hadpurchased drugs from him at the same apartment in the past. This argument is unpreserved,however, as defendant did not object to the testimony or request any curative instructions (see People v Burnell, 89 AD3d1118, 1122 [2011], lv denied 18 NY3d 922 [2012]; People v Echavarria, 53 AD3d859, 863 [2008], lv denied 11 NY3d 832 [2008]). In any event, the evidence ofdefendant's past interactions with the CI at the same apartment was highly relevant as to identity,provided necessary context for the CI's testimony and explained why defendant was targeted bythe police (see People v Torres, 19AD3d 732, 734 [2005], lv dismissed 5 NY3d 810 [2005]; People v Tarver, 2 AD3d 968, 969[2003]; People v Diakite, 296 AD2d 655, 656 [2002], lv denied 99 NY2d 535[2002]).
In reviewing defendant's next contention that he was denied the effective assistance ofcounsel, we will consider whether " 'the evidence, the law, and the circumstances of a particularcase, viewed in totality and as of the time of the representation, reveal that the attorney providedmeaningful representation' " (People v Benevento, 91 NY2d 708, 712 [1998], quotingPeople v Baldi, 54 NY2d 137, 147 [1981]). A defendant is not entitled to a perfect trial,and must demonstrate the absence of strategic or other legitimate explanations for counsel'salleged deficiencies (see People v Benevento, 91 NY2d at 712; People v McRobbie, 97 AD3d970, 972 [2012]; People v Harvey, 96 AD3d at 1100). Here, we cannot faultcounsel's failure to make any pretrial motions because the People voluntarily disclosed allpaperwork prior to trial and the police did not obtain any statements or physical evidence fromdefendant. Similarly, the failure to preserve the legal insufficiency argument cannot beconsidered to be ineffective assistance, inasmuch as a motion to dismiss at the close of thePeople's proof would likely have been denied in view of the CI's testimony and the laboratoryanalysis report (see People v McRobbie, 97 AD3d at 972; People v Harvey, 96AD3d at 1100; People v Hoffler, 74AD3d 1632, 1636[*3][2010], lv denied 17 NY3d 859[2011]).
Nor has defendant demonstrated the lack of a strategic reason to stipulate the laboratoryanalysis reports into evidence, and it may well have been a plausible tactical decision to limit thePeople's witnesses to the CI and the detective in order to highlight the perceived weaknesses intheir testimony (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Knox, 80 AD3d 887, 889[2011], lv denied 16 NY3d 860 [2011]; People v Fancher, 267 AD2d 770, 771[1999], lv denied 94 NY2d 919 [2000]). In this regard, defense counsel vigorouslycross-examined the CI, fully explored her past criminal and fraudulent behavior, impeached herwith prior inconsistent statements and highlighted her motives to fabricate. Trial counsel wasable to elicit inconsistencies in the testimony of the CI and the detective and, to the extent thatcounsel elicited damaging testimony regarding the presence of defendant's vehicle at theresidence, he did so as part of a consistent, coherent strategy to establish that the detective wasunable to fully observe the CI, who was portrayed as untrustworthy and capable of engaging indeceit if she had the opportunity to do so. Although counsel failed to object to the evidence ofuncharged crimes or request limiting instructions, he put forth a reasonable defense theory withcogent opening and closing statements, vigorously cross-examined the People's witnessesand—significantly—secured an acquittal on one of the two charges. Accordingly,we are satisfied that defendant received meaningful representation (see People v Wiltshire, 96 AD3d1227, 1228-1229 [2012]; People vBuchanan, 95 AD3d 1433, 1436-1437 [2012]; People v Head, 90 AD3d 1157, 1159 [2011]).
We have considered defendant's remaining contentions, including his claim that theAllen charges given to the jury were improper, and find them to be without merit.
Peters, P.J., Spain, McCarthy and Garry, JJ., concur. Ordered that the judgment and order areaffirmed.
Footnote *: Defendant does not address theissues raised in his CPL 440.10 motion in his brief and we therefore deem the appeal from thedenial of that motion to be abandoned (see People v Gibson, 2 AD3d 969, 970 n 1 [2003], lvdenied 1 NY3d 627 [2004]).