| People v Acevedo |
| 2016 NY Slip Op 05517 [141 AD3d 843] |
| July 14, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vEfrain J. Acevedo III, Appellant. |
Danielle Neroni Reilly, Albany, for appellant.
P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered May 9, 2014, upon verdicts convicting defendant of the crimes of criminalpossession of a controlled substance in the third degree and criminal possession ofmarihuana in the fourth degree.
On October 30, 2012, hospital staff at Albany Medical Center responded to a reportof an odor of burning marihuana and traced that odor to defendant's room. Whenquestioned by hospital security, defendant allegedly admitted to smoking marihuana andto having more of it in his backpack, prompting the search of his backpack and thediscovery of more than two ounces of marihuana inside. Hospital security then searcheddefendant's jacket and discovered over one-half ounce of crack cocaine.
Police officers were ultimately called to the hospital and discovered over $5,000inside of defendant's pillowcase. As a result, defendant was charged in a four-countindictment with criminal possession of a controlled substance in the third degree (twocounts), criminal possession of marihuana in the fourth degree and criminally using drugparaphernalia in the second degree. Following a jury trial, he was acquitted of one countof criminal possession of a controlled substance in the third degree, which required proofof his possession of crack with the intent to sell it. He was also acquitted of criminallyusing drug paraphernalia in the second degree and convicted of criminal possession ofmarihuana in the fourth degree. The jury was, however, unable to reach a verdict on thesecond count of criminal possession of a controlled substance in the third degree, whichrequired proof that he possessed one-half ounce or more of crack. Following a secondjury trial, defendant was convicted of that charge. He was [*2]subsequently sentenced to an aggregate prison term of threeyears, to be followed by two years of postrelease supervision. Defendant nowappeals.
We find merit in defendant's contention that County Court erred in denying hisrequest to charge the lesser included offense of unlawful possession of marihuana. ThePeople properly concede that unlawful possession of marihuana is a lesser includedoffense of criminal possession of marihuana in the fourth degree (see Penal Law§§ 221.05, 221.15). Thus, our inquiry distills to whether" 'there is a reasonable view of the evidence which would support a finding that. . . defendant committed such lesser offense but did not commit thegreater' " (People vColville, 20 NY3d 20, 31 [2012], quoting CPL 300.50 [1]; see People v Williams, 138AD3d 1233, 1237 [2016]). In evaluating this question, we must view the evidence inthe light most favorable to defendant and assess whether " 'there is. . . some identifiable, rational basis on which the jury could reject a portionof the prosecution's case which is indispensable to establishment of the higher crime andyet accept so much of the proof as would establish the lesser crime' " (People v Rivera, 23 NY3d112, 121 [2014], quoting People v Scarborough, 49 NY2d 364, 369-370[1980]; accord People vGrayson, 138 AD3d 1250, 1251 [2016]).
Here, we find that the jury could have accepted portions of each witness's testimony,while rejecting other portions, and arrived at the conclusion that defendant committed thelesser offense but not the greater. Based upon our review of the record, we find that theevidence of the odor of marihuana that led hospital staff to defendant's room plus hisadmission to smoking marihuana in his room could lead a rational factfinder to concludethat defendant possessed a small amount of marihuana that he had smoked in thehospital, but that he was not aware of the larger amount of marihuana that wasdiscovered in his backpack that had been delivered to his room by family members afterhis admission to the hospital. Accordingly, we must reverse his conviction for criminalpossession of marihuana in the fourth degree and remit for a new trial on that charge (see People v Carota, 93 AD3d1072, 1076 [2012]; Peoplev Rivera, 70 AD3d 1177, 1183-1184 [2010], lv denied 14 NY3d 855[2010]; People v Ryan, 55AD3d 960, 964 [2008]). As a result of this conclusion, defendant's remainingchallenges to his conviction for criminal possession of marihuana in the fourth degree arerendered academic.
Turning to defendant's conviction of criminal possession of a controlled substance inthe third degree, defendant contends that the People violated his equal protection rightspursuant to Batson v Kentucky (476 US 79 [1986]) by using peremptorychallenges to remove two nonwhite members of the second panel of prospectivejurors[FN1]—namely, juror No. 2 and juror No. 14—and that County Court improperlycompressed the Batson inquiry. When a party raises a Batson challenge,courts engage in a three-step process (see People v Hecker, 15 NY3d 625, 634-635 [2010],cert denied 563 US 947 [2011]; People v Smocum, 99 NY2d 418,421-422 [2003]). "At step one, the moving party bears the burden of establishing a primafacie case of discrimination in the exercise of peremptory challenges. Once a prima faciecase of discrimination has been established, the burden shifts, at step two, to thenonmoving party to offer a facially neutral explanation for each suspect challenge. At thethird step, the burden shifts back to the moving party to prove purposeful discriminationand the trial court must determine whether the proffered reasons are pretextual" (People v Jones, 136 AD3d1153, 1157-1158 [2016] [internal quotation marks and citations omitted], lvdenied 27 NY3d 1000 [2016]; see People v Allen, 86 NY2d 101, 109-110[1995]). While the step-two determination focuses only on the facial neutrality of theexplanation, the step-three determination "is a question of fact, [*3]focused on the credibility of the race-neutral reasons," andit is incumbent on the moving party "to make a record that would support a finding ofpretext" at step three (People v Smocum, 99 NY2d at 422; see People vJames, 99 NY2d 264, 271-272 [2002]; People v Payne, 88 NY2d 172,183-184 [1996]). Stated differently, after the trial court accepts the nonmoving party'srace-neutral reasons, "the moving party must make a specific objection to the exclusionof any juror still claimed to have been the object of discrimination" (People vJames, 99 NY2d at 272).
Inasmuch as the People offered facially race-neutral reasons for the use of theirperemptory challenges at step two, the sufficiency of defendant's step one showing isnow moot (see People vGrafton, 132 AD3d 1065, 1067 [2015], lv denied 26 NY3d 1145 [2016];People v Knowles, 79AD3d 16, 20 [2010], lv denied 16 NY3d 896 [2011]). As to juror No. 2, thePeople based their peremptory challenge on his perceived inattentiveness, explaining thatthey "had to get his attention several times" during voir dire and "dr[a]w him in" because"he was out in thought somewhere." We are mindful that "[t]he explanation at step two isnot required to be persuasive, or even plausible; as long as the reasons for the challengesare facially neutral, even ill-founded reasons will suffice" (People vGrafton, 132 AD3d at 1066 [internal quotation marks and citations omitted]; seePeople v Smocum, 99 NY2d at 422; People v Allen, 86 NY2d at 109-110).Here, the People's explanation was facially neutral, as it reflected their concern regardingjuror No. 2's inattentive demeanor (see People v Miles, 55 AD3d 307, 308 [2008], lvdenied 11 NY3d 928 [2009]).
Regarding juror No. 14, the People stated that they did not want her on the jurybecause she believed that "she was a victim of racial profiling." Contrary to defendant'sargument on appeal, the record establishes that juror No. 14's statement was in responseto a race-neutral question posed by the People—specifically, whether she felt "like[she was] targeted or . . . that [she] caught a break," when she hadpreviously been accused of a crime that was ultimately dismissed—and it was thejuror herself who interjected the element of race into her answer (compare People v Mallory, 121AD3d 1566, 1567 [2014]).[FN2] Thus, here too, the People's profferedreason was sufficient to shift the burden to defendant, as it was "based on something[*4]other than the race of" juror No. 14 (People vHecker, 15 NY3d at 655 [internal quotation marks and citation omitted]; seePeople v Allen, 86 NY2d at 110).
Following the People's step-two proffer, County Court denied the Batsonchallenge, without any attempt to respond or protestation registered by defendant. Now,on appeal, defendant contends for the first time that County Court erred in failing toconduct a step-three inquiry. However, "[b]y accepting the People's explanation withoutany additional objection at a time [when] it could have been addressed, defendant failedto preserve" this contention for our review (People v James, 99 NY2d at 272;see People v Smocum, 99 NY2d at 423-424; People v Thomas, 92 AD3d 1084, 1086 [2012]; Peoplev Knowles, 79 AD3d at 21; compare People v Grafton, 132 AD3d at 1067),and we decline to exercise our interest of justice jurisdiction (see People vColeman, 5 AD3d 1074, 1075 [2004], lv denied 3 NY3d 638 [2004]). Inreaching this conclusion, we reaffirm the importance of both the trial court's attention toeach articulated, sequential step of the Batson inquiry, and counsel's "attention toplacing their objections on the record so they may be addressed by the court" (Peoplev Smocum, 99 NY2d at 423-424). Indeed, "whatever procedural problems may existin a Batson inquiry, the overriding concern is that a properly preservedquestion regarding the ultimate issue of discrimination is meaningfully addressed"(People v Grafton, 132 AD3d at 1067 [emphasis added]; see People vSmocum, 99 NY2d at 423; People v James, 99 NY2d at 273).
Defendant also contends that, because his intent to sell was not an issue at the secondtrial, County Court erred in partially denying his motion to preclude the People fromintroducing evidence regarding the $5,000 in cash that was seized from his pillowcase." 'Even where technically relevant evidence is admissible, it may still beexcluded by the trial court in the exercise of its discretion if its probative value issubstantially outweighed by the danger that it will unfairly prejudice the otherside' " (People vCassala, 130 AD3d 1252, 1256 [2015], lv denied 27 NY3d 994 [2016],quoting People v Scarola, 71 NY2d 769, 777 [1988] [citations omitted]; see People v Caban, 14 NY3d369, 374-375 [2010]). Where the intent to sell is not an element of the crimecharged, proof that a defendant possessed a large sum of cash at the time of arrest isgenerally inadmissible because it typically has no relationship to the charge and, thus,any probative value is outweighed by the potential for prejudice (see People vBailey, 159 AD2d 862, 863 n [1990]; People v Whitfield, 144 AD2d 915,915-916 [1988]; see also Peoplev Sumter, 68 AD3d 1701, 1702 [2009], lv denied 14 NY3d 893[2010]).
Here, it is undisputed that the intent to sell was not an element of the crime at issue inthe second trial. Nevertheless, the People maintained that the $5,000 in cash was relevantto prove defendant's financial means to purchase the amount of crack at issue and also torefute his position—which he maintained during the first trial—that hecould not be held accountable for any admissions made at the time that the crack wasconfiscated from his jacket pocket because he was in an allegedly oblivious state ofconsciousness due to the pain medications that had been administered to him. To counterthis tactic, the People sought to show that defendant had exhibited full awareness of hiscircumstances when the cash was seized from his pillowcase very shortly after the seizureof the crack. In our view, the People's proffer established a sufficient relationshipbetween the $5,000 in cash and the crime charged, and County Court'scompromise—which allowed the People to elicit testimony regarding the $5,000in cash, but prohibited them from introducing evidence that it was almost exclusivelycomprised of $20 bills—ameliorated the potential for prejudice (comparePeople v Whitfield, 144 AD2d at 916).
In any event, even if we were to conclude that County Court abused its discretion, wewould find that there was overwhelming evidence of defendant's guilt (see People vSumter, 68 AD3d at 1702). In this regard, several witnesses testified that defendantadmitted ownership of [*5]the crack found in his jacketand it was established that the crack weighed over one-half ounce. Thisproof—even in the face of defendant's testimony denying the foregoingevents—overwhelmingly established defendant's guilt and, thus, any error inadmitting the testimony regarding the $5,000 found in defendant's pillowcase washarmless (see People vDeCarr, 130 AD3d 1365, 1367 [2015], lv denied 26 NY3d 1008[2015]).
We are also unpersuaded by defendant's contention that he was deprived of a fairtrial by the prosecutor's comments during summation. Initially, defendant's challenge tothe prosecutor's remarks regarding the testimony of defendant's mother and whetherdefendant disputed that crack was found in his jacket went unobjected to at trial and,thus, are unpreserved for our review (see People v Adams, 135 AD3d 1154, 1158 [2016], lvdenied 27 NY3d 990 [2016]; People v Mitchell, 129 AD3d 1319, 1321 [2015], lvdenied 26 NY3d 1041 [2015]). As for the remaining comments that defendantchallenges, even if we were to conclude that they were improper, we would find that theydid not constitute such "a flagrant and pervasive pattern of prosecutorial misconduct soas to deprive [him] of a fair trial" (People v Fiorino, 130 AD3d 1376, 1380 [2015] [internalquotation marks and citations omitted], lv denied 26 NY3d 1087 [2015]; seePeople v Mitchell, 129 AD3d at 1321; People v Heiserman, 127 AD3d 1422, 1424 [2015]; compare People v Casanova,119 AD3d 976, 979 [2014]; People v Forbes, 111 AD3d 1154, 1160 [2013]), especiallyin light of the fact that County Court sustained a number of defendant's objections andgave several prompt and adequate curative instructions (see People v Chancey, 127AD3d 1409, 1412 [2015], lv denied 25 NY3d 1199 [2015]; People v Milford, 118 AD3d1166, 1171 [2014], lv denied 23 NY3d 1065 [2014]).
We have considered defendant's remaining contentions and find them to beunavailing.
Devine and Clark, JJ., concur.
McCarthy, J. (concurring in part and dissenting in part). "The Constitution forbidsstriking even a single prospective juror for a discriminatory purpose" (Snyder vLouisiana, 552 US 472, 478 [2008] [internal quotation marks, brackets and citationsomitted]; accord Foster v Chatman, 578 US &mdash, &mdash, 136 S Ct 1737,1747 [2016]). Once a Batson challenge is made, a trial court must engage in athree-step process, the steps of which are well-established by clear case law stretchingback more than 30 years (see Foster v Chatman, 578 US at &mdash, 136 S Ct at1747; Batson v Kentucky, 476 US 79, 97-98 [1986]). The third step of thisinquiry is the "key, final protocol," in which the trial court both resolves factual disputesand makes findings of fact and assessments of credibility (People v Payne, 88NY2d 172, 186 [1996]). A trial court that resolves a Batson challenge withoutproceeding to this third step "falls short of [providing] a meaningful inquiry into thequestion of discrimination" (People v Smocum, 99 NY2d 418, 423 [2003][internal quotation marks and citations omitted]). Further, "trial courts bear the judicialresponsibility of ensuring that an adequate record is made and of reflecting the basis fortheir [Batson] rulings" (People v Payne, 88 NY2d at 184). It isuncontested that, here, County Court failed to proceed to the third step of defendant'sBatson challenge. In contrast to the majority, we find that, as in People v Watson (141 AD3d23, 30 [2016]), corrective action in the interest of justice is warranted based on thisfailure. We would remit the matter for further proceedings necessary to satisfy theBatson inquiry and, therefore, we respectfully dissent in this regard.
We agree with the majority's analysis as to the application of the first two steps of theBatson inquiry. Our focus is on the potential harm of [*6]County Court's failure to proceed to the third step, in whichdefendant would be afforded the opportunity to persuade the court that two nonwhitejurors, juror No. 2 and juror No. 14, were struck based on purposeful discrimination,prior to the court making a determination as to whether the prosecutor's proffered reasonsfor striking those jurors were pretextual (see Foster v Chatman, 578 US at&mdash, 136 S Ct at 1747; People v Jones, 136 AD3d 1153, 1158 [2016], lvdismissed 27 NY3d 1000 [2016]). As to this third step, "[t]he trial court has a pivotalrole in . . . Batson claims . . . [including] an evaluationof the prosecutor's credibility" (Snyder v Louisiana, 552 US at 477). This isespecially true when a prosecutor cites a juror's demeanor as the reason for the use of theperemptory challenge (see e.g. id. at 479).
In assessing whether corrective action is warranted despite defendant's failure topreserve the issue,[FN3] we turn to the questions raised by therecord that cannot be resolved given the absence of the step-three inquiry. Notably, theprosecutor's sole articulated reason for striking juror No. 2 was that he was not payingattention. The two relevant comments that the prosecutor had made during the previousquestioning was that juror No. 2 had looked "deep in thought" and that he looked like hewas "thinking really hard." In the absence of a step-three inquiry, the record is bereft ofany findings by County Court as to whether or not juror No. 2 had been paying attentionor whether or not it credited the proffered explanation that he had not been payingattention.
Regarding juror No. 14, a black woman, the prosecutor stated that he did not wanther on the jury because she believed that "she was a victim of racial profiling." CountyCourt failed to make the crucial finding resolving whether that reason waspretextual.[FN4]This more probing inquiry should have considered the views expressed by juror No. 14,in response to a number of questions by the prosecutor regarding a decade-old"[s]hoplifting" charge against her that had been dismissed by a court:[FN5] she believed she hadbeen treated fairly by law enforcement and the court system; she described the policeofficer involved, the judge involved and her attorney as[*7]"very nice"; and she did not have preconceived notionsabout law enforcement or about the court system. After receiving theseresponses—responses which one might expect from an exemplary prospectivejuror—the prosecutor asked her whether she had felt "targeted." In response, andfor the first time, she mentioned race, stating that she "believ[ed] it was a case of racialprofiling . . . [b]ecause of how [she] looked and how [she] wasdressed."[FN6] Shefurther stated that this conclusion was "just [her] opinion" and that it was "just how [she]processed it." Although the aforementioned colloquy was unique from all others basedon the fact that juror No. 14 mentioned racial profiling, it was also unique from all othersbased on the fact that she was the only juror asked about "target[ing]." The prosecutorhad multiple colloquies with jurors regarding criminal accusations and convictions andnever asked another juror for an opinion about whether the subject of those accusationsor convictions had been "targeted."[FN7] County Court was uniquely situated tomake factual findings regarding the foregoing before making a credibility determinationas to whether or not the prosecutor's stated reason for using a peremptory strike againstthis juror was pretextual.
On this record, "[t]he prosecutor's putatively neutral explanations cannot be assessedand resolved as a matter of law, given the ambiguities and lack of clarity" (People v Watson, 141 AD3d23, 29 [2016]). In light of this conclusion, and upon consideration of the critical rolethat Batson plays in the provision of justice, we would hold defendant's appeal inabeyance and remit the matter for further proceedings necessary to satisfy therequirements of Batson v Kentucky (476 US 79 [1986], supra) and itsprogeny (see Foster v Chatman, 578 US &mdash, 136 S Ct 1737; Snyder vLouisiana, 552 US 472 [2008], supra; Powers v Ohio, 499 US 400 [1991]; People v Watson, 141 AD3d23, 30 [2016]).
Aarons, J., concurs.
Ordered that the judgment is modified, on the law, by reversing defendant'sconviction of criminal possession of marihuana in the fourth degree under count three ofthe indictment and vacating the sentence imposed thereon; matter remitted to the CountyCourt of Albany County for further proceedings pursuant to CPL 460.50 (5) and for anew trial on count three; and, as so modified, affirmed.
Footnote 1:As noted by CountyCourt, the People did not use a peremptory challenge to remove a third nonwhite juror.
Footnote 2:The dissent characterizesthe question posed by the People as unique, reasoning that juror No. 14 was the onlyprospective juror asked about "target[ing]." The record reveals, however, that juror No.14 was the only prospective juror asked this question because she was the only one whohad been previously charged with a crime and had not expressed any ill will toward thePeople during questioning by County Court. To this end, three other prospective jurorsalso stated that they had previously been charged or convicted of crimes; however, theyindicated during questioning by County Court—i.e., prior to the point at which thePeople could question each of them—that they could not be impartial and hadanimosity toward the People. Thus, it was unnecessary for the People to question theseprospective jurors after their responses to County Court's questioning established theirlack of impartiality. Furthermore, prospective jurors who discussed relatives or friendsaccused of crimes could be viewed as falling into a different category than one whoadmitted to having been personally accused, and we would expect the People's colloquieswith such jurors to reflect this subtle distinction.
Footnote 3:In considering theimportance of preservation, it is notable that the interests that Batson wasdesigned to protect are not all represented by a defense attorney's zealous advocacy."Batson was designed to serve multiple ends, only one of which was to protectindividual defendants from discrimination in the selection of jurors" (Powers vOhio, 499 US 400, 406 [1991] [internal quotation marks and citations omitted])."Batson recognized that a prosecutor's discriminatory use of peremptorychallenges harms the excluded jurors and the community at large" (id. [citationomitted]).
Footnote 4:As the majority notes,step two can be satisfied by unpersuasive or implausible reasons, as long as they arefacially neutral. That step was satisfied here by the literal conclusion that juror No. 14mentioned racial profiling in response to a question that did not mention race.
Footnote 5:Before the prosecutor'sinquiry had even begun, juror No. 14 had already assured County Court that she could befair and impartial, that she would not hold that prior "episode" against the People andthat she understood that the episode and the trial at issue were "completely differentsituations."
Footnote 6:Notably, juror No. 14never stated who she felt had racially profiled her.
Footnote 7:The majority concludesthat it would have been "unnecessary" to ask other jurors about targeting, because thosewho admitted to having been accused of a crime had already expressed ill will toward thePeople prior to any colloquy with the prosecutor. That analysis, however, overlooks thefact that a number of jurors discussed criminal accusations against "relative[s] or closefriend[s]." Multiple jurors assured the prosecutor that they could be fair despite criminalaccusations against relatives or friends, and the prosecutor did not ask any of those jurorswhether the relevant relative or friend had been "targeted."