| People v Stroman |
| 2013 NY Slip Op 03507 [106 AD3d 1268] |
| May 16, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v IsaacK. Stroman, Appellant. |
—[*1] D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered December 10, 2010, upon a verdict convicting defendant of the crimes ofcriminal sale of a controlled substance in the third degree and criminal possession of acontrolled substance in the third degree (two counts).
On August 18, 2009, and following a series of telephone calls initiated by aconfidential informant (hereinafter CI), defendant pulled into the parking lot of a HessMart located in the Town of Lloyd, Ulster County, exited his SUV and climbed into theback seat of a vehicle that he mistakenly believed to be occupied by two familiarfaces—the CI, who was sitting in the front passenger seat and to whom defendanthad sold drugs in the past, and one of the CI's friends, who was sitting in the driver's seatand who previously had accompanied the CI on such occasions. Once in the vehicle, anddespite the fact that his "spider senses" were now on alert, defendant gave the CI 100packets of a substance that would later prove to be heroin, and the CI gave defendant$900 in prerecorded buy money. Upon returning to his SUV, defendant began countingthe money and, noting that he had received only $100 bills as payment, again sensed[*2]that something was wrong.[FN1] Defendant's instincts proved to be accurate; although the passenger in the subject vehicleindeed was the CI, the driver was actually an undercover sheriff's deputy who bore apassing resemblance to the CI's friend. As the CI and undercover officer pulled out of theparking lot, defendant was arrested by members of the take-down team and searched,whereupon the prerecorded buy money, together with a quantity of crack cocaine andmarihuana, were recovered.
Following a jury trial, defendant, who took the stand and readily admitted to sellingheroin to the CI on the day in question, was convicted of criminal sale of a controlledsubstance in the third degree and two counts of criminal possession of a controlledsubstance in the third degree. Defendant thereafter was sentenced, as a second felonyoffender, to concurrent terms of 15 years in prison followed by three years of postreleasesupervision. This appeal ensued.
Defendant initially contends that the police lacked probable cause to arrest him and,therefore, the buy money, crack cocaine and marihuana recovered from him should havebeen suppressed. We do not agree. "Probable cause for an arrest exists when an officerhas knowledge of facts and circumstances sufficient to support a reasonable belief that anoffense has been or is being committed" (People v Jenkins, 90 AD3d 1326, 1327 [2011], lvdenied 18 NY3d 958 [2012] [internal quotation marks and citations omitted]; see People v Lovejoy, 92AD3d 1080, 1081 [2012]). Specifically, "[s]uch facts and circumstances must makeit more probable than not that a crime has taken place and that the one arrested is itsperpetrator" (People vParker, 84 AD3d 1508, 1509 [2011], lv denied 18 NY3d 927 [2012][internal quotation marks and citations omitted]). To that end, "[a]n arresting officer mayrely on information obtained from a fellow officer so long as the police as a whole werein possession of information sufficient to constitute probable cause to make the arrest"(People v Sudler, 75 AD3d901, 902 [2010], lv denied 15 NY3d 956 [2010] [internal quotation marksand citations omitted]; seePeople v Perez, 47 AD3d 1071, 1072 [2008]).
Here, the undercover officer testified that she was present when the CI placed two ofthe telephone calls made that day to set up the drug buy. Although the CI did not identifythe seller by name and the undercover officer could not hear the seller's side of theseconversations, a black male with long dreadlocks—dressed in a blue shirt andjeans and later identified as defendant—arrived in the parking lot shortly after thesecond telephone call was concluded. Upon entering the subject vehicle, at which pointdefendant was sitting within two feet of the undercover officer, defendant and the CIdiscussed price. The CI then handed defendant the prerecorded buy money anddefendant, in turn, handed the CI what the undercover officer reasonably believed to beheroin packaged in small envelopes and tied together with black rubber bands. Afterdefendant and the CI discussed the possibility of another transaction, defendant exitedthe vehicle. The undercover officer then signaled—via the transmitting device thatwas hidden in the vehicle and being monitored by other law enforcementpersonnel—that the transaction was completed and provided a description ofdefendant and what he was wearing. When the take-down team moved in less than 30seconds later, they observed defendant—the only black male in the vicinitymatching the description provided by the undercover officer—walking in theparking lot and promptly arrested him, whereupon the prerecorded buy money and aquantity of crack cocaine and marihuana were recovered. Such proof, in our view, ismore than [*3]sufficient to establish probable cause fordefendant's arrest.
Defendant next takes issue with a supplemental report prepared by one of thedetectives involved in the buy-bust operation, wherein the detective, who omits anyreference to the CI and/or her role in the transaction, states that the drugs were purchasedfrom defendant "utilizing an undercover police officer." According to defendant, suchstatement misled him as to the identity of the purchaser, thereby influencing his decisionto reject a plea offer and impeding his ability to prepare a defense, and constituted falseevidence against him. Again, we do not agree.
Assuming, without deciding, that the relevant report may be characterized asaffirmatively misleading, the identity of the buyer is immaterial for purposes ofdefendant's conviction of criminal sale of a controlled substance in the third degree."Quite simply, the corpus delicti of the crime charged was the transfer of a controlledsubstance; the person to whom that substance was transferred was immaterial to thisconviction" (People v Feldman, 50 NY2d 500, 504 [1980] [citations omitted]).Additionally, as the challenged report was neither entered into evidence at trial nor usedby the People to obtain defendant's conviction, the People did not proffer "false"evidence against defendant or otherwise violate their duty of fair dealing. Further, therecord reflects that defendant (1) readily admitted—both before the grand jury andat trial—to selling drugs on the day in question,[FN2] (2) knew the identity of the individuals he believed to have been involved in thetransaction (and in setting him up), and (3) was aware—well in advance oftrial—of both the report's existence and the statements containedtherein,[FN3] and defense counsel utilized the report to vigorously cross-examine its author at trial.Under these circumstances, it cannot be said that the report in any way impededdefendant's ability to prepare a defense. Finally, any claim that the subject reportinfluenced defendant's decision to reject a plea is belied by the record, which reveals thatdefendant rejected plea offers in March 2010 and June 2010—long after hisOctober 2009 grand jury testimony evidencing his awareness of the report and thestatements contained therein.
Nor do we find merit to defendant's claim of ineffective assistance of counsel.Initially, to the extent that defendant contends that counsel failed to properly investigatehis case or sufficiently confer with him prior to trial, such claims involve matters outsidethe record and, as such, are more properly the subject of a CPL article 440 motion (see People v Bahr, 96 AD3d1165, 1166 [2012], lv denied 19 NY3d 1024 [2012]; People v Pendelton, 81 AD3d1037, 1038-1039 [2011], lv denied 16 NY3d 898 [2011]). As to the balanceof defendant's claim, although the trial strategy adopted could be considerednovel,[FN4] the record reflects that counsel expressly [*4]adviseddefendant of the pitfalls associated therewith and otherwise gave cogent opening andclosing statements, made appropriate objections, motions and requests to charge andextensively cross-examined the People's witnesses. Under these circumstances, we aresatisfied that defendant received meaningful representation (see People v Buchanan, 95AD3d 1433, 1437 [2012]; People v Fulwood, 86 AD3d 809, 811 [2011], lvdenied 17 NY3d 952 [2011]). Defendant's remaining contentions, including hisassertion that the sentence imposed was harsh and excessive, have been examined andfound to be lacking in merit.
Rose, J.P., Lahtinen and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: As defendantsubsequently would testify at the grand jury proceeding, "Dope fiends don't carry moneylike that."
Footnote 2: "This [was] a buy-bustsale. I was caught with marked money. . . . I did it."
Footnote 3: Indeed, defendant'savowed purpose in appearing before the grand jury was to challenge the underlying"paperwork" accusing him of selling drugs to an undercover officer, stating, "I never soldanything to an undercover officer. I sold [drugs] to a drug dealer and a dope fiend."
Footnote 4: At trial, defendant wasadamant that the two individuals present with him at the time of the underlying sale werethe CI and her friend, the latter of whom he recognized from prior sales to the CI, anddefendant repeatedly insisted that he never sold drugs to the undercover officer. In sodoing, defendant apparently was attempting to persuade the jury either that the policewere outright lying, i.e., the undercover officer was not actually present for the sale,or—at the very least—were attempting to improve the People's chance ofobtaining a conviction by maintaining that the sale was made to the undercover officer,who—compared to the CI—arguably could be perceived as a more crediblewitness. While the viability of such a defense is debatable, the fact remains that,notwithstanding defendant's candid admissions at trial, the jury took nearly six hours toreturn a verdict, during which time it requested various read backs of the testimony and aportion of the jury charge.