| People v Malloy |
| 2015 NY Slip Op 00665 [124 AD3d 1150] |
| January 29, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Deauntta Malloy, Appellant. |
Kindlon, Shanks & Associates, Albany (Terence L. Kindlon of counsel), forappellant.
P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Albany County (Herrick,J.), rendered August 1, 2013, upon a verdict convicting defendant of the crime ofcriminal possession of a controlled substance in the fourth degree.
Shortly after a detective observed defendant approach a vehicle and engage in ahand-to-hand transaction with an individual seated inside—which the detectivebelieved was a drug sale—and then enter a nearby residence, several policeofficers executed a search warrant and entered the house. At that point, defendant exitedthe rear of the house, threw a plastic bag containing crack cocaine onto the ground andjumped over a fence into a nearby vacant lot. Shortly thereafter, defendant emerged froma brushy area of the vacant lot and was subsequently apprehended by a police detectivewho was involved in the police operation.
Defendant was charged by indictment with criminal possession of a controlledsubstance in the third degree and criminal possession of a controlled substance in thefourth degree. Following a trial, the jury found defendant guilty of criminal possession ofa controlled substance in the fourth degree and sentenced him, as a second felonyoffender, to five years in prison followed by three years of postrelease supervision.Defendant now appeals.
Defendant asserts that County Court committed reversible error by admittingredacted [*2]recordings of two phone calls that indicatethat defendant had been incarcerated pending trial.[FN*] The People argued that the phonecalls—in which defendant states, among other things, that he was "at the wrongplace at the wrong time" when he was arrested—provided the jury with a curativelimiting instruction, but the prejudicial effect of the evidence revealing defendant'sincarceration outweighed its limited probative value (compare People v Jenkins,88 NY2d 948, 950-951 [1996]). Nonetheless, we conclude that County Court's improperadmission of the phone call evidence does not warrant a reversal in light of theoverwhelming evidence of defendant's guilt (see People v Guy, 93 AD3d 877, 880-881 [2012], lvdenied 19 NY3d 961 [2012]; People v Moore, 148 AD2d 754, 755 [1989],lv denied 74 NY2d 667 [1989]). In particular, trial evidence revealed that twodetectives were standing behind the house when they observed defendant run out of aback door of the house toward a fence located at the rear of the property. The officerstestified that they were approximately 20 to 30 feet from defendant at the time hediscarded the drugs. After one of the officers pursued defendant on foot and called forassistance, a detective responded to the call and saw defendant emerge from "the brushfrom the back of [a] vacant lot . . . slowing down from a jog into a walk."After defendant was apprehended, his identity was confirmed by the officers that hadobserved him throwing the drugs to the ground. Considering this evidence, we find thatany error in admitting the jailhouse phone calls was harmless.
Moreover, we are not persuaded by defendant's argument that County Courtimproperly permitted the People to introduce testimony regarding an uncharged drugtransaction in which defendant was involved prior to his arrest. The detective's testimonythat he observed defendant approach a vehicle on the street, lean into the vehicle andmake "an exchange inside the vehicle" mere minutes before he was arrested was"inextricably interwoven with the charged crimes, relevant to defendant's state of mind,and occurred so closely in time after the conduct for which defendant was being tried thatits probative value outweighs any potential prejudice" (People v Din, 110 AD3d1246, 1248 [2013], lv denied 22 NY3d 1137 [2014]; see People v Buchanan, 95AD3d 1433, 1436 [2012], lv denied 22 NY3d 1039 [2013]; People v Hernandez, 27 AD3d229, 229 [2006], lv denied 7 NY3d 790 [2006]).
Finally, we do not agree with defendant's claim that various occurrences ofprosecutorial misconduct deprived him of a fair trial. Inasmuch as the severity andfrequency of the statements or other actions that defendant considered inappropriate werelimited in scope and largely addressed and remedied by County Court, it cannot be saidthat defendant sustained substantial prejudice that would require a new trial (see People v Wright, 88 AD3d1154, 1158 [2011], lv denied 18 NY3d 863 [2011]; People v Kirker, 21 AD3d588, 589 [2005], lv denied 5 NY3d 853 [2005]; People v McCombs, 18 AD3d888, 890 [2005]).
Lahtinen, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:While defendant alsochallenges the admission of the audio recordings on the ground that they were inaudible,as such challenge was not raised before County Court, it has not been preserved forappellate review (see People vForward, 46 AD3d 1222, 1223 [2007], lv denied 10 NY3d 811 [2008]).