| People v Wheeler |
| 2015 NY Slip Op 00657 [124 AD3d 1136] |
| January 29, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vKarlyle Wheeler, Appellant. |
Cliff Gordon, Monticello, for appellant.
D. Holley Carnright, Kingston (Joshua Harris Povill of counsel), for respondent.
McCarthy, J.P. Appeal from a judgment of the County Court of Ulster County(Williams, J.), rendered October 3, 2012, upon a verdict convicting defendant of thecrimes of criminal possession of a controlled substance in the third degree (two counts)and criminal sale of a controlled substance in the third degree (two counts).
Defendant was indicted on two counts of criminal possession of a controlledsubstance in the third degree and two counts of criminal sale of a controlled substance inthe third degree after he sold cocaine to an undercover police officer on two occasions onthe same date. Following trial, the jury found him guilty of all counts. County Courtsentenced him, as a second felony drug offender whose prior felony conviction was aviolent felony, to an aggregate term of 15 years in prison, followed by three years ofpostrelease supervision. Defendant appeals.
County Court did not err in denying defendant's Batson challenge. Defendantcontended that the People were exercising their peremptory challenges in adiscriminatory manner because they struck the only two remaining black members of thepanel, after one black individual was removed on consent. The People then offeredrace-neutral reasons for their challenges. As to one juror, who was a college student atHarvard, the prosecutor stated that it was his practice to generally exclude students fromjuries. The other excluded individual was a student studying video game design. Theprosecutor stated that this juror was challenged because he was a student, he wore hishair in long braids and people with long hair were often viewed as rebellious, and theprosecutor preferred potential jurors later in the panel so he challenged several [*2]people in a row, including the black male. The courtcredited the People's reasons as nonpretextual, noting that the prosecutor had exercisedperemptory challenges on students in other trials, and five out of six students in the jurypanel were removed that day. A party may exclude jurors for physical traits such as longhair (see e.g. Purkett v Elem, 514 US 765, 769 [1995]; People v Richie,217 AD2d 84, 88 [1995], lv denied 88 NY2d 940 [1996]). The record alsosupports the prosecutor's statement about desiring to reach potential jurors later on thelist, as several white jurors seated next to the black male were also removed throughperemptory challenges. Thus, we will not disturb County Court's findings accepting thePeople's reasons as nonpretextual (see People v Lee, 80 AD3d 877, 879-880 [2011], lvdenied 16 NY3d 833 [2011]; People v Knowles, 79 AD3d 16, 21-22 [2010], lvdenied 16 NY3d 896 [2011]).
County Court did not err in permitting the undercover officer to identify defendant attrial. After holding a Wharton hearing, the court found that the undercoverofficer's pretrial identification of defendant was confirmatory and, therefore, not undulysuggestive.[FN*] Asthe Court of Appeals held in People v Wharton (74 NY2d 921 [1989]), a pretrialidentification is merely confirmatory where an undercover officer observed the defendantfirsthand during a planned drug transaction and made the identification "at a place andtime sufficiently connected and contemporaneous to the arrest itself as to constitute theordinary and proper completion of an integral police procedure" (id. at 922-923;see People v Roberts, 79 NY2d 964, 966 [1992]; People v Nguyen, 90 AD3d1330, 1334 [2011], lv denied 18 NY3d 960 [2012]). As in that case, here theundercover officer's participation in the drug transaction with this particular individual"was planned, and [the officer] was experienced and expected to observe carefully thedefendant for purposes of later identification and for completion of his official duties"(People v Wharton, 74 NY2d at 923; compare People v Allah, 57 AD3d 1115, 1116-1117[2008], lv denied 12 NY3d 780 [2009]). While this exception is generally utilizedin "buy and bust" situations, the same reasoning applies to permit a confirmatoryidentification that is conducted contemporaneously to the drug transaction itself, whetherthe suspect is arrested immediately or not (see People v Banks, 242 AD2d 726,727 [1997], lv denied 91 NY2d 868 [1997]). Single photograph identificationsare generally considered suggestive, but they are permitted as confirmatory if conductedwithin a short time after an officer's personal observation of a defendant during a planneddrug sale (see People v Smith, 293 AD2d 764, 765 [2002], lv denied 98NY2d 713 [2002]; People v Banks, 242 AD2d at 727; People v Miles,219 AD2d 685, 686-687 [1995], lvs denied 87 NY2d 905 [1995], 88 NY2d 968[1996]; compare People v Fulton, 223 AD2d 932, 932-933 [1996]; People vMunroe, 185 AD2d 530, 530-532 [1992]).
Here, the undercover officer testified that he saw defendant for about one minuteduring the first drug sale, outside in daylight at a distance of about four feet. During thesecond sale, the officer saw defendant for about 15 seconds, at the same distance and inthe same lighting conditions. The officer was shown a single picture of defendant 10minutes after the second sale. Defendant was arrested approximately seven months afterthe drug sales. As the identification here was connected to and contemporaneous with thedrug transaction, it qualified as merely confirmatory, to assure that the police wouldarrest the proper person. In any event, the undercover officer's observation of defendantfor more than a minute in broad daylight at a close distance constituted an independentbasis for permitting his in-court identification of defendant (see People v Parker,257 AD2d 693, 694-695 [1999], lv denied 93 NY2d 1024 [1999]; People vBrown, 217 AD2d 797, 798 [1995], lv denied 86 NY2d 872 [1995]). Whileproof of a [*3]pretrial identification is not permitted aspart of the People's case-in-chief, here such evidence was brought out by the defense inan effort to discredit the officer's identification of defendant.
Defendant received the effective assistance of counsel. To prevail on his argument ofineffective assistance, defendant had to prove that his counsel failed to providemeaningful representation, including proving that she lacked any strategic or otherlegitimate explanations for the alleged errors (see People v Baker, 14 NY3d 266, 270-271 [2010]).Defendant contends that his counsel erred by failing to call his brother as a witness.Despite defendant's testimony that his brother would testify that he—and notdefendant—was present at the time of the drug sales at issue, the record does notnecessarily support his assertion. Outside the presence of the jury, defendant's counselinformed County Court that she had talked to the brother recently, but his story wasinconsistent and he had stopped returning counsel's calls. Defense counsel also felt thatthe brother would not testify, but would invoke his Fifth Amendment right not toincriminate himself. Thus, she had a legitimate reason for not calling or subpoenaing thebrother to testify.
Defendant also contends that his counsel should have objected to the admission ofthe drugs because there was no proof that the drugs that were tested were the same drugsinvolved in the sales. This argument is unpersuasive, and his counsel cannot be faultedfor failing to make an objection that would not have been successful. Defense counselcould have cross-examined the police officers and the confidential informant about thesearch of the informant prior to the drug transactions, specifically regarding how theinformant was able to buy ice cream if the officers had verified that she had no money onher. This alleged shortcoming, however, did not deprive defendant of effectiveassistance. The topic was collateral, and all of the testimony and video established thatthe confidential informant never touched the drugs or money involved in the transaction.Accordingly, defendant's counsel provided him with meaningful representation.
County Court did not impermissibly expand its Sandoval ruling during trial.During cross-examination of defendant, the court allowed the People to exploreadditional information and underlying facts about one of defendant's crimes and anothersituation, based on defendant opening the door to such questioning through his answerson direct examination (see People v Fardan, 82 NY2d 638, 646 [1993]). Thecourt warned defendant that the line of questioning would open the door, and defendantknowingly continued with his testimony on those topics, making it only fair for thePeople to rebut any misleading impressions that defendant created (see People v Heckstall, 45AD3d 907, 909 [2007], lv denied 10 NY3d 766 [2008]).
Defendant was not entitled to an adverse inference charge regarding the lack of audioon a portion of the video recording of the first drug transaction. An adverse inferencecharge informs the jury that it may draw an inference in favor of the defendant becausematerial evidence is missing, but such a charge is meant for situations where the evidencehas been lost or destroyed by agents of the government (see People v Handy, 20 NY3d663, 669-670 [2013]; People v Acevedo, 112 AD3d 985, 987 [2013], lvdenied 23 NY3d 1017 [2014]). Here, the missing audio portion never existedbecause the officer in charge of the equipment testified that he mistakenly did not turn onthe audio until the transaction was underway. Under the circumstances, County Courtcorrectly determined that defendant was not entitled to an adverse inference charge.
We have reviewed defendant's remaining contentions and find themunpersuasive.
Garry, Lynch and Clark, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:At oral argument onappeal, defendant conceded that the relevant information came out at theWharton hearing, so that a separate Wade hearing was unnecessary.