| People v Hawkins |
| 2015 NY Slip Op 06265 [130 AD3d 1298] |
| July 23, 2015 |
| Appellate Division, Third Department |
[*1](July 23, 2015)
| The People of the State of New York, Respondent, vAndre Hawkins, Appellant. |
Alexander W. Bloomstein, Hillsdale, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joey Drillings of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered July 27, 2012, upon a verdict convicting defendant of the crimes of criminalsale of a controlled substance in the third degree (two counts) and criminal possession ofa controlled substance in the third degree (two counts).
In April 2011, as the result of an investigation by the Ulster Regional GangEnforcement Narcotics Team (hereinafter URGENT), defendant was indicted andcharged with two counts of criminal sale of a controlled substance in the third degree andtwo counts of criminal possession of a controlled substance in the third degree. Thecharges stemmed from two separate and targeted buys in April 2010, wherein defendantsold narcotics to an undercover officer assigned to URGENT and working in conjunctionwith a confidential informant (hereinafter CI). Although a warrant for defendant's arrestwas issued in April 2011, he was not apprehended until he turned himself in toauthorities in October 2011. Following defendant's arraignment, defense counsel movedto dismiss the indictment upon statutory speedy trial grounds, contending, among otherthings, that the People failed to exercise due diligence in locating defendant. A hearingensued, at the conclusion of which County Court found that the People had satisfied theirdue diligence obligation; as a result, the 200 days that elapsed between the filing of theindictment in April 2011 and the People's statement of readiness in October 2011 werenot chargeable to the People, and defendant's speedy trial motion was denied.
The matter proceeded to trial, at which time both the undercover officer anddefendant, among others, appeared and testified as to the underlying drug transactions.Defendant was [*2]convicted as charged and thereafterwas sentenced, as a second felony offender, to concurrent prison terms of 10 yearsfollowed by three years of postrelease supervision. This appeal by defendant ensued.
We affirm. Initially, we find no merit to defendant's claim that County Court erred indenying his speedy trial motion. Inasmuch as defendant was charged with felonyoffenses, the People were required to be ready for trial within six months (seeCPL 30.30 [1] [a]). "In computing the time within which the People must be ready fortrial, the court must exclude 'the period of delay resulting from the absence orunavailability of the defendant' " (People v Devore, 65 AD3d 695, 696 [2009], quoting CPL30.30 [4] [c] [i]). For purposes of the statute, and insofar as is relevant here, "[a]defendant must be considered absent whenever his [or her] location is unknown and. . . [such] location cannot be determined by due diligence" (CPL 30.30 [4][c] [i]; see People v Devino,110 AD3d 1146, 1148 [2013]). "The determination of whether the People haveexercised due diligence in locating a person is a mixed question of law and fact"(People v Grey, 259 AD2d 246, 248 [1999], lv denied 94 NY2d 880[2000] [citation omitted]), and "[w]hile minimal attempts to locate a defendant andsecure his [or her] presence in court will not satisfy the due diligence standard, the policeare not obliged to search for a defendant indefinitely as long as they exhaust allreasonable investigative leads as to his [or her] whereabouts" (People vDelaronde, 201 AD2d 846, 847-848 [1994]; accord People v Petrianni, 24 AD3d 1224, 1224 [2005];see People v Devino, 110 AD3d at 1148-1149).
Here, there is no dispute that 200 days elapsed between the filing of the indictment inApril 2011 and the People's declaration of readiness in October 2011, and the recordmakes clear that defendant's whereabouts were unknown to law enforcement officialsduring this time period. Hence, the issue distills to whether the People exercised duediligence in attempting to locate defendant. In this regard, a detective with the City ofKingston Police Department in Ulster County who, in turn, was assigned to URGENT,testified that, immediately after the warrant for defendant's arrest was issued, he reachedout to the CI who had participated in the underlying drug transactions in an effort toobtain an address or phone number for defendant. When that effort proved to beunsuccessful, the detective ran defendant's criminal history report and obtained a formeraddress for defendant in the City of Schenectady, Schenectady County. Within one weekof the issuance of the arrest warrant, the detective contacted the City of SchenectadyPolice Department and asked that they check the address in question.
When a check of the Schenectady County address failed to locate defendant, thedetective entered defendant's arrest warrant into the New York State Police InformationNetwork database in May 2011, a nationwide database of active arrest warrants. Thedetective further testified that, in July 2011, a fellow URGENT member ran a"comprehensive report" through another law enforcement database in an effort to obtaina list of defendant's last known addresses. Based upon the results of this search andinformation obtained from another informant,[FN*] the detective obtained an address fordefendant in the City of Poughkeepsie, Dutchess County and again requested that locallaw enforcement check the location provided. When that effort failed, the detectivereached out to a fellow URGENT member who, in September 2011, put him in touchwith the United States Marshals Service in the City of Albany. In October 2011, theMarshals Service was able to locate and contact defendant's "significant other," whorelayed a message to defendant. Shortly thereafter, defendant turned himself in to theauthorities.
[*3] In light of the foregoingefforts, it cannot be said that "the authorities shirked their continuing obligation of duediligence" (People v Marrin, 187 AD2d 284, 286 [1992], lv denied 81NY2d 843 [1993]; accord People v Petrianni, 24 AD3d at 1225). Althoughdefendant averred that he was "living openly" and receiving mail at a particular addressduring the relevant time period and faults the People and law enforcement for failing tocheck his Social Security number against the records of various governmental agencies,counsel conceded at oral argument that defendant's name was not on the lease for thepremises, and the record is devoid of proof that defendant registered that address withany entity, including the United States Postal Service, the Department of Motor Vehicles,the Department of Labor and/or state and federal taxing authorities (compare Peoplev Devino, 110 AD3d at 1149; People v Devore, 65 AD3d at 697). Underthese circumstances, we are satisfied that the People discharged their due diligenceobligation—even if "greater efforts could have been undertaken" (People vGrey, 259 AD2d at 249). Accordingly, defendant was not deprived of his statutoryright to a speedy trial.
Nor are we persuaded that County Court erred in permitting the People to amend theindictment. CPL 200.70 (1) provides, in relevant part, that "[a]t any time before or duringtrial, the court may, upon application of the [P]eople and with notice to the defendant andopportunity to be heard, order the amendment of an indictment with respect to defects,errors or variances from the proof relating to matters of form, time, place, names ofpersons and the like, when such an amendment does not change the theory or theories ofthe prosecution as reflected in the evidence before the grand jury which filed suchindictment, or otherwise tend to prejudice the defendant on the merits." Here, during thecourse of jury selection, County Court granted the People's oral motion to amend theindictment to reflect that defendant sold (count three) and/or possessed (count four)cocaine as opposed to heroin. The subject amendment did not alter the People's theory ofthe case but, rather, appears to have been required simply to correct a clerical error in theindictment. Additionally, we discern no prejudice to defendant as a result of theamendment. Notably, the People's pretrial discovery response, as well as the grand juryminutes, reflected that the substance forming the basis for the charges outlined in countsthree and four of the indictment was cocaine. Under these circumstances, County Courtdid not err in permitting the amendment (see People v Bausano, 122 AD3d 1341, 1341 [2014], lvdenied 25 NY3d 1069 [2015]; People v Monday, 309 AD2d 977, 980[2003]; People v Pacheco, 280 AD2d 685, 686 [2001], lv denied 96NY2d 905 [2001]; see alsoPeople v Hall, 125 AD3d 1095, 1096 [2015]; People v Cruz, 61 AD3d1111, 1112 [2009]).
Although defendant's challenge to the legal sufficiency of the evidence has not beenpreserved for our review, "our weight of the evidence analysis necessarily involves anevaluation of whether all elements of the charged crimes were proven beyond areasonable doubt at trial" (People v Pine, 126 AD3d 1112, 1114 [2015] [internalquotation marks, brackets and citation omitted]; see People v Colburn, 123 AD3d 1292, 1292 n [2014],lv denied 25 NY3d 950 [2015]). Insofar as is relevant here, "[a] person is guiltyof criminal sale of a controlled substance in the third degree when he [or she] knowinglyand unlawfully sells . . . a narcotic drug" (Penal Law § 220.39[1]), and "[a] person is guilty of criminal possession of a controlled substance in the thirddegree when he [or she] knowingly and unlawfully possesses . . . a narcoticdrug with intent to sell it" (Penal Law § 220.16 [1]). The crux ofdefendant's argument on appeal is that it is "impossible" to discern—from theaudio/video recordings of the two transactions—whether the drugs at issue weresold by defendant or the CI. Defendant's argument on this point, however, ignores thefact that there was a third person present for the transactions at issue—namely, theundercover officer who actually purchased the drugs and positively identified defendantas the seller.
The record reflects that arrangements were made through the CI for the undercover[*4]officer to make a controlled drug purchase fromdefendant at the Kingston Plaza parking lot in Kingston. The undercover officer, whohad been shown a photograph of defendant and was equipped with a body wire, drove tothe appointed location in an unmarked vehicle and waited for the CI and defendant toarrive. After a car driven by the CI pulled up next to the undercover officer's vehicle, theundercover officer exited and entered the back seat of the CI's car. Following a briefconversation, the front-seat passenger—a black male that the undercover officerlater positively identified as defendant—handed the undercover officer 10 glassineenvelopes of a substance that subsequently tested positive for heroin in exchange for$120 in prerecorded buy money. The undercover officer then indicated to defendant andthe CI that, if they were going to be around, she might have additional funds to purchasemore drugs—specifically, crack cocaine. After exiting the CI's vehicle, theundercover officer returned to a predetermined location and turned over the heroin thatshe had purchased from defendant.
Within minutes, a phone call was placed to the CI and a second controlled buy wasarranged. The undercover officer, still wearing a body wire, returned to the shoppingplaza and awaited the arrival of the CI and defendant. As with the previous transaction,the undercover officer exited her vehicle and entered the back seat of the CI's vehicle, atwhich point defendant handed the undercover officer four small, clear plastic "twists" ofa substance later determined to be crack cocaine in exchange for $80 in prerecorded buymoney. The undercover officer again returned to a predetermined location, relinquishedthe drugs in question and, as with the prior transaction, positively identified defendant asthe individual from whom she had purchased the drugs. Both transactions were recordedby members of URGENT, and audio/video recordings of these transactions were enteredinto evidence at trial.
Although defendant readily admitted to being present for the subject sales, heinsisted that the actual drug transactions occurred between the CI and the undercoverofficer. This conflicting testimony, however, presented a credibility issue for the jury toresolve (see People v Toye,107 AD3d 1149, 1151 [2013], lv denied 22 NY3d 1091 [2014]).Accordingly, "[w]hile a different verdict would not have been unreasonable, viewing theevidence in a neutral light and giving due deference to the jury's credibilitydeterminations, we cannot say that the jury failed to accord the evidence the weight thatit deserved" (People v Pine, 126 AD3d at 1115-1116; see People v Richards, 124AD3d 1146, 1146-1147 [2015], lv denied 25 NY3d 992 [2015]).
Finally, defendant contends that he was denied the effective assistance ofcounsel—a claim that is premised, in large measure, upon counsel's decision toquestion defendant on direct examination regarding his prior criminal history, whichultimately resulted in counsel eliciting information beyond the scope of County Court'sprior—and favorable—Sandoval ruling. "To succeed on anineffective assistance claim, a defendant must prove that trial counsel failed to providemeaningful representation. . . . In addition, even if a defendant shows thatthe lawyer erred, a defendant must further demonstrate the absence of strategic or otherlegitimate explanations for the error" (People v Baker, 14 NY3d 266, 270-271 [2010] [internalquotation marks and citations omitted]; see People v Wheeler, 124 AD3d 1136, 1138-1139 [2015],lv denied 25 NY3d 993 [2015]).
Based upon our review of the record as a whole, we are satisfied that defendantreceived meaningful representation. Trial counsel engaged in appropriate pretrial motionpractice, including filing a motion to dismiss the indictment upon statutory speedy trialgrounds, made cogent opening and closing statements, strongly cross-examined thePeople's witnesses, registered appropriate objections and arguments throughout thecourse of the trial and advanced a plausible defense—namely, that it was the CI,who died prior to trial, who actually sold the drugs to the undercover officer on the dayin question. Consistent with that theory, defense counsel [*5]elicited testimony regarding the CI's criminal background,the fact that the CI was paid for his services in connection with the underlyingtransactions and that, contrary to routine procedures, he was not searched for contrabandprior to the controlled purchases at issue.
Although defense counsel indeed questioned defendant regarding his prior criminalhistory, thereby admittedly opening the door for further exploration by the People on thispoint, the record makes clear that this was an intentional, tactical decision on the part ofcounsel. Specifically, counsel's strategy was designed to show that, while defendant didhave a prior history of drug use and drug-related convictions, defendant, who last solddrugs in 1992 and last used drugs in 1998, was a recovering addict who no longer solddrugs to support his habit. Upon reviewing both the colloquy between defense counseland County Court and counsel's summation, it is apparent that counsel was endeavoringto portray defendant as a man who had seen the error of his ways (at least as far as drugswere concerned) and, hence, it was far more likely that it was the CI—and notdefendant—who had sold the drugs to the undercover officer. Even assuming thatthis strategy was—upon further reflection—ill advised, "a simple, hindsightdisagreement with trial tactics or strategy is insufficient to establish a lack of meaningfulrepresentation" (People vUnderdue, 89 AD3d 1132, 1134 [2011], lv denied 19 NY3d 969[2012]). Defendant's remaining contentions, including his assertion that the sentenceimposed is harsh and excessive, have been examined and found to be lacking inmerit.
McCarthy, J.P., Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Throughout this timeperiod, the detective also reached out to other informants in an effort to ascertaindefendant's whereabouts.