| People v Anderson |
| 2017 NY Slip Op 03222 [149 AD3d 1407] |
| April 27, 2017 |
| Appellate Division, Third Department |
[*1](April 27, 2017)
| The People of the State of New York, Respondent, v GuyAnderson, Appellant. |
Danielle Neroni Reilly, Albany, for appellant, and appellant pro se.
Eric T. Schneiderman, Attorney General, New York City (Matthew B. Keller of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered July 31, 2013, upon a verdict convicting defendant of the crimes of conspiracy in thesecond degree, criminal sale of a controlled substance in the first degree (four counts), criminalsale of a controlled substance in the second degree (three counts), criminal sale of a controlledsubstance in the third degree (two counts), attempted criminal possession of a controlledsubstance in the first degree (two counts), attempted criminal possession of a controlledsubstance in the third degree, criminal possession of a controlled substance in the third degreeand operating as a major trafficker.
Following an investigation by the Attorney General's Organized Crime Task Force,defendant was arrested in connection with an alleged conspiracy to possess and sell cocaine andheroin in Albany County, various other counties in New York, and Vermont, and charged withmultiple crimes related to the criminal sale and possession of controlled substances. Following ajoint jury trial,[FN1]defendant was convicted of conspiracy in the second degree, criminal sale of a [*2]controlled substance in the first degree (four counts), criminal saleof a controlled substance in the second degree (three counts), criminal sale of a controlledsubstance in the third degree (two counts), attempted criminal possession of a controlledsubstance in the first degree (two counts), attempted criminal possession of a controlledsubstance in the third degree, criminal possession of a controlled substance in the third degreeand operating as a major trafficker. He was thereafter sentenced as a persistent felony offenderand a violent predicate offender to an aggregate prison term of 165 years to life. Defendantappeals.
Initially, we find no merit in defendant's contention that County Court should have grantedhis motion to suppress evidence resulting from a search of his storage unit. A court'sdetermination that probable cause exists for the issuance of a search warrant "must be affordedgreat deference" (People vFerguson, 136 AD3d 1070, 1072 [2016] [internal quotation marks and citationsomitted]; see People v Mitchell, 57AD3d 1232, 1233 [2008], lv denied 12 NY3d 760 [2009]), and "[m]inordiscrepancies or misstatements do not amount to egregious inaccuracies affecting a probablecause determination" (People v Myers, 241 AD2d 705, 707 [1997], lv denied 91NY2d 877 [1997]). Here, an affidavit supporting the search warrant application incorrectlyidentified the specific vehicle upon which a GPS device had been placed for the purpose oftracking defendant's visits to the storage unit. However, the investigator who completed theaffidavit testified that this was an unintentional error, and stated that another vehicle, alsobelonging to defendant, was in fact monitored by the investigators. County Court credited thistestimony and found that the evidence, taken as a whole, clearly indicated that the correct vehiclewas monitored and that the application was otherwise supported by probable cause. Thus,defendant did not meet his burden to establish that the warrant application was based uponstatements that "were knowingly false or made in reckless disregard of the truth" (People v Williams, 138 AD3d1233, 1237 [2016] [internal quotation marks and citations omitted], lv denied 28NY3d 939 [2016]; see People v Myers, 241 AD2d at 707).
Next, we reject defendant's contention that his suppression motion should have been grantedas to eavesdropping warrants pertaining to certain coconspirators. Defendant preserved the issueof his standing to challenge the warrants by raising it in his omnibus motion and, contrary toCounty Court's determination, we find that he had standing to raise this issue. The challengedeavesdropping warrants permitted the interception of communications on phones used by severalof defendant's alleged coconspirators. The People subsequently submitted a new application for awarrant to intercept defendant's cell phone communications that was supported, in part, bytranscripts of intercepted conversations between one of the conspirators and defendant thatallegedly revealed that defendant was supplying drugs to the conspirators. As a party to theseconversations, with reason to believe that they would be offered against him, defendant hadstanding to challenge the warrants (see CPL 710.20 [2]; People v Fonville, 247AD2d 115, 118 n [1998]; People v Truver, 244 AD2d 990, 990-991 [1997]).
County Court did not, however, err in denying defendant's motion on this ground, as thewarrant applications established that there was probable cause for their issuance and thattraditional investigative procedures were unlikely to succeed (see CPL 700.15 [2], [4];700.20 [2]; People v Alnutt, 107AD3d 1139, 1141 [2013], lv denied 22 NY3d 1136 [2014]; People v Ross, 97 AD3d 843,844-845 [2012], lv denied 20 NY3d 935 [2012]). It was not necessary to establish "thatevery conceivable method of investigation has been tried and failed," and the applicationssuccessfully demonstrated "the nature and progress of the investigation and the difficultiesinherent in the use of normal law enforcement methods" (People v Brown, 233 AD2d764, 765 [1996] [internal quotation marks, ellipsis and citations omitted], lv denied 89NY2d 1009 [1997]; see People v Rodriguez, 274 AD2d 826, 828 [2000], lvdenied 95 NY2d 938 [2000]). The record provides no support for defendant's contention thatthe applications were [*3]based on knowing or reckless falseaverments by police (see People v Griffin, 234 AD2d 718, 720 [1996], lv denied89 NY2d 1036 [1997]).
As for defendant's contention that the sealing requirements of CPL 700.50 (2) and 700.65 (3)were not complied with in that several of the sealing orders were not signed by the justice whoissued the warrants, the sealing requirements are strictly construed and the People are required tooffer a satisfactory explanation for any delay that may take place in sealing the evidence (seePeople v Winograd, 68 NY2d 383, 394-395 [1986]; People v Mullen, 152 AD2d 260,267 [1989]). In a county where other justices are available, if the People are unable to locate theissuing justice, they are required to find another justice to issue the sealed order (see People vWinograd, 68 NY2d at 394-395; People v Gallina, 66 NY2d 52, 59-60 [1985];People v Fonville, 247 AD2d at 127). Here, investigators complied with this requirementand avoided undue delay by locating another justice to timely seal the evidence on threeoccasions when the issuing justice was unavailable.
Next, defendant challenges County Court's denial of his motion to suppress identificationtestimony by several investigators on the ground that the People failed to serve the noticerequired by CPL 710.30. Before trial, the People advised defendant of their intention to presentidentification testimony and indicated that statutory notice was not required because theidentifications were confirmatory. Defendant moved for an order precluding this evidence, andCounty Court conducted a hearing pursuant to People v Rodriguez (79 NY2d 445[1992]). The hearing testimony revealed that, in the course of earlier surveillance of anotherindividual, investigators saw the individual meet with defendant, then unknown to them, andsought to determine his identity. A state trooper conducted a traffic stop immediately thereafterand identified defendant by examining his license and registration. The investigators then posteda copy of defendant's driver's license photograph on the wall of the investigation room. At theRodriguez hearing, each of the investigators testified that they saw the posted photographon many occasions thereafter in the course of their work, and were thus able to recognize andidentify defendant when they began conducting visual surveillance of him. Based upon thistestimony, the court concluded that the investigators' identifications were confirmatory and thatstatutory notice was not required.
We agree with County Court that statutory notice was not required, but on a different ground.CPL 710.30 requires the People to serve notice upon the defendant of their intention to introduce"testimony regarding an observation of the defendant either at the time or place of thecommission of the offense or upon some other occasion relevant to the case, to be given by awitness who has previously identified him [or her] as such" (CPL 710.30 [1] [b]). Certainidentifications that fall within the scope of the statute but involve no possibility of unduesuggestiveness or misidentification have been held to be exempt from the notice requirement, butthese confirmatory identifications are limited to two well-defined scenarios that are inapplicablehere (see People v Boyer, 6 NY3d427, 431-432 [2006]; People v Rodriguez, 79 NY2d at 449-451; People vWharton, 74 NY2d 921, 922-923 [1989]; People v Allah, 57 AD3d 1115, 1116-1117 [2008], lvdenied 12 NY3d 780 [2009]). Nevertheless, defendant's preclusion motion was properlydenied, as the notice requirements of CPL 710.30 do not apply here.
The notice requirement applies to police-arranged identifications, and its purpose is to allowthe defense an opportunity to inquire into whether misleading or suggestive procedures wereused that could affect the accuracy of a later identification in court (see People vGissendanner, 48 NY2d 543, 552 [1979]; People v Butler, 16 AD3d 915, 916 [2005], lv denied 5NY3d 786 [2005]). "A failure to appreciate this fundamental purpose, and, particularly, thedistinction between an observation and an identification procedure, may result in the erroneous[*4]invocation of CPL 710.30 (1) (b) any time a witness sees adefendant on more than one occasion prior to trial" (People v Peterson, 194 AD2d 124,128 [1993] [citations omitted], lv denied 83 NY2d 856 [1994]). The statute's purposesare implicated only when the identifying witness has experienced "two distinct pretrial 'viewings'of a defendant" in which the witness first observed the defendant at the time or place of anoffense or another relevant occasion, and then participated in "a separate, police-initiated,identification procedure, such as a lineup, showup or photographic array, which takes placesubsequent to the observation forming the basis for the witness's trial testimony and prior to thetrial" (id. [emphasis omitted]). Critically, this second procedure "is not itself probative ofdefendant's guilt or innocence but is intended merely to 'establish[ ] the identity of the criminalactor' " (id., quoting People v Gissendanner, 48 NY2d at 552). Bycontrast, notice of an eyewitness identification is not required "where the eyewitness has notpreviously made any out-of-court, police-initiated identification of the defendant in connectionwith that crime" (People v Butler, 16 AD3d at 916).
Here, no such identifications in connection with a prior crime were made. The initialidentification of defendant by the state trooper who determined his identity by examining hisdriver's license did not implicate CPL 710.30, as the trooper had not previously observeddefendant and was identifying him for the purpose of future surveillance.[FN2] The identifications by theinvestigators who subsequently conducted that surveillance and observed defendant as he cameand went from his home, school and storage unit met with other investigation subjects andparticipated in drug transactions likewise were not identification procedures with respect to priorcrimes, but observations regarding new, independent activities and criminal offenses (seePeople v Peterson, 194 AD2d at 128-129). After completing this surveillance, theinvestigators did not participate in any pretrial procedures intended to establish the identity of theindividual they had monitored, such as lineups or showups (see People v Gissendanner,48 NY2d at 552). Instead, they directly identified defendant in court as the same person whomthey had monitored as he participated in drug transactions—a circumstance that does notimplicate the purposes of CPL 710.30 and therefore does not fall within its purview (see People v Jackson, 43 AD3d488, 489-490 [2007], lv denied 9 NY3d 962 [2007]; People v Butler, 16AD3d at 916-917; People v Rufin, 237 AD2d 866, 867 [1997]; People v Peterson,194 AD2d at 128-129). Thus, no statutory notice was required.
Next, defendant challenges the admission of evidence pertaining to an uncharged drug sale.During jury selection, the People advised County Court that it had just been discovered that oneof the recorded calls pertaining to a cocaine sale, for which defendant was charged, alsocontained discussion of a sale of ecstasy, for which defendant had not been charged. Defendantmade a motion in limine to preclude the People from referring to any substance other than thosenamed in the indictment, and the court denied the motion, ruling that "the evidence wasinextricably entwined with the evidence in the case," and denied defendant's application for aMolineux/Ventimiglia proffer.
At trial, a witness testified about several transactions in which he purchased drugs fromdefendant, and the People played recordings of accompanying phone calls. The testimonyincluded a phone call in which the witness asked to buy ecstasy from defendant, another in whichhe asked to purchase both ecstasy and cocaine, and a third in which defendant stated that hewould no longer sell ecstasy to the witness. We agree with County Court that the references toecstasy in the call that involved both drugs were "inextricably interwoven" in that they were"explanatory of the acts done or words used in the otherwise admissible part of the evidence"and[*5]"relat[ed] directly to the crime[s] charged such that thevalue of the evidence clearly outweigh[ed] any possible prejudice" (People v Nicholas, 130 AD3d1314, 1316 [2015] [internal quotation marks and citations omitted]; see People vVentimiglia, 52 NY2d 350, 359-361 [1981]). However, there was no such direct relationshipas to the calls that pertained solely to ecstasy, nor was it determined that the probative value ofthe evidence outweighed its potential for prejudice (see People v Till, 87 NY2d 835,836-837 [1995]; People v Nicholas, 130 AD3d at 1316). Nevertheless, this error washarmless, as the admissible evidence—which included numerous recorded calls pertainingto sales of heroin and cocaine as well as the coconspirators' testimony implicatingdefendant—was overwhelming, and there was no significant probability that defendantwould have been acquitted if the two calls pertaining to ecstasy had not been admitted (seePeople v Crimmins, 36 NY2d at 242).
Defendant was not deprived of a fair trial when County Court permitted the People to explainthe definitions of conspiracy and narcotics sale during their opening statement. A prosecutor maymake comments about the law during opening statements or summation so long as the law isaccurately stated and "the court ma[kes] clear to the jury that it must accept the law as stated bythe court" (People v Whitehead, 130AD3d 1142, 1145 [2015], affd 29 NY3d 956 [2017]; see People v Bush, 75 AD3d 917,920 [2010], lv denied 15 NY3d 919 [2010]). The prosecutor's comments on conspiracywere accurate, and the court provided a prompt cautionary instruction that advised the jury tofollow only the court's instructions on the law (see People v Whitehead, 29 NY3d 956,958 [2017]; People v Barnes, 80 NY2d 867, 868 [1992]). Defendant's claim regarding theprosecutor's similar remarks pertaining to narcotics sales was not preserved, as defendant'scounsel did not join an objection by counsel for some of his codefendants (see People vBuckley, 75 NY2d 843, 846 [1990]), and we perceive no reason to take corrective action inthe interest of justice.
Contrary to defendant's claim, County Court properly permitted Guiry to testify as an expertregarding the meaning of certain coded language used in the recorded phone calls. It is wellestablished that the meaning of the specialized jargon used in drug transactions is not within theknowledge of a typical juror and is therefore an appropriate subject for expert testimony (seePeople v Brown, 97 NY2d 500, 505 [2002]; People v Blackman, 118 AD3d 1148, 1150 [2014], lvdenied 24 NY3d 1001 [2014]; seealso People v Inoa, 25 NY3d 466, 473 [2015]). Here, Guiry's testimony regarding hisextensive training and experience in narcotics investigations established his qualifications as anarcotics expert (see People vHicks, 2 NY3d 750, 751 [2004]). Further, Guiry's testimony as to the meaning of theterminology used in recorded phone calls did not usurp the function of the jury. The courtappropriately limited the testimony's scope, sustaining defense objections as necessary(compare People v Inoa, 25 NY3d at 473-475), and repeatedly instructed the jury thatGuiry was testifying as to his opinions, and that the ultimate determination as to the meaning ofthe language was to be made by the jury. As part of the final charge, the court further instructedthe jury that it should evaluate the believability and accuracy of Guiry's testimony as it would thatof any other witness, that the jury was free to reject his testimony, and that it did not constituteproof of defendant's guilt (see People v Brown, 97 NY2d at 506).
As to defendant's claim that a juror should have been discharged based upon an anonymousnote received during the trial alleging certain improprieties, defendant initially objected to thatjuror's continued presence on the jury, but later expressly stated that he wished the juror toremain. Likewise, defendant did not object when, later in the trial, County Court investigated afurther issue pertaining to the same juror and advised counsel that it had found no misconduct.Defendant's current claim that this juror should have been discharged is thus [*6]unpreserved (see People v Grimm, 107 AD3d 1040, 1040-1041 [2013], lvdenied 21 NY3d 1042 [2013]), and no modification in the interest of justice iswarranted.[FN3]
We find no merit in defendant's claim that the People improperly vouched for two witnessesduring the prosecutor's summation. The remarks were made in direct response to credibilitychallenges raised during the defense summations and constituted fair comments on the evidence(see People v Pine, 82 AD3d1498, 1502 [2011], lv denied 17 NY3d 820 [2011]). Defendant's contention that theprosecutor improperly attempted to shift the burden of proof is unpreserved, as he did not objectto the comments in question (see Peoplev Mitchell, 129 AD3d 1319, 1321 [2015], lv denied 26 NY3d 1041 [2015]).
As for defendant's challenges to the jury charge, County Court did not err in refusing to givea multiple conspiracy instruction, as the evidence established that defendant and the other allegedconspirators worked in coordination with one another to obtain and distribute narcotics, and"[t]here was no reasonable view of the evidence that there was any conspiracy narrower in scopethan the single conspiracy charged in the indictment" (People v Brown, 142 AD3d 769, 771 [2016], lvs denied 28NY3d 1123, 1125 [2016]; see People v Leisner, 73 NY2d 140, 150 [1989]). Defendantalso claims that two supplemental jury instructions given by the court, taken together, wereimproperly coercive. Before discharging jurors for the weekend on a Fridayafternoon—the seventh day of the jury's deliberations after 11 weeks oftestimony—the court reminded them, sua sponte, that the next Monday would likely be thefinal day of deliberations as one of the jurors had a long-planned obligation, and asked the juryabout its progress. The foreperson advised the court that he did not think it was reasonably likelythat the jury would reach a verdict on all counts by the end of the day on Monday, but that averdict had been reached on some counts. The court then, sua sponte, gave the jury asupplemental instruction that directed it, in summary, to continue deliberating on Monday as ifdeliberations were expected to continue beyond that day, to feel no pressure to reach a verdict onany additional counts, to deliberate with the goal of reaching a fair and just verdict on theremaining counts, and to do so without surrendering its honest convictions. The jury continueddeliberating the following Monday and, during the afternoon, advised the court that it had notbeen able to reach a verdict on five counts. After consulting with counsel, the court delivered anAllen charge that closely tracked the language of the pattern instruction. Several hourslater, when the jury continued to be unable to reach a verdict on the remaining charges, the courtdeclared a mistrial as to those counts and accepted a partial verdict.
Defendant now contends that County Court erred in delivering the first supplementalinstruction without consulting first with counsel. However, although he raised the same objectionat trial, defendant has not, either then or now, provided any specific criticisms beyond his generalclaim that the charge was improperly coercive, nor indicated what changes, if any, he might haverequested upon consultation. We do not find the charge improperly coercive; rather, it "wasbalanced and neutral in tone, and . . . did not urge any dissenting jurors to abandontheir [*7]convictions and acquiesce in the opinion of the otherjurors, attempt to coerce or compel the jurors to reach a particular verdict, or shame the jurorsinto reaching a verdict" (People vColeman, 64 AD3d 787, 787 [2009], lv denied 13 NY3d 835 [2009]; see People v Hardy, 26 NY3d 245,252 [2015]; People v Guerrier, 46AD3d 937, 938-939 [2007], lv denied 9 NY3d 1034 [2008]). Any inference to thecontrary is further undermined by the fact that the jury continued to deliberate and remainedunable to reach a full verdict even after the court subsequently issued the Allen charge(see People v Anderson, 116 AD3d499, 500 [2014], lv denied 24 NY3d 958 [2014]; compare People v Aponte, 2 NY3d 304, 309 [2004]).[FN4] In view of all of thecircumstances, there was no error requiring reversal.
Finally, defendant contends that his sentence is harsh and excessive. We find no merit in hiscontention that his lengthy sentence was a punishment for exercising his right to trial (see People v Blond, 96 AD3d1149, 1153-1154 [2012], lv denied 19 NY3d 1101 [2012]; People v Beauharnois, 64 AD3d996, 1001 [2009], lv denied 13 NY3d 834 [2009]). Although there is a verysubstantial discrepancy between defendant's ultimate sentence and those proposed in two pleaoffers that he rejected, the offers contemplated that defendant would plead guilty to one or twofelonies in satisfaction of all of the charges against him, while his sentence after trial reflectedconvictions for 15 crimes, including seven class A-I felonies. Thus, neither a comparison withthe rejected offers nor the agreed-upon sentences that several of his coconspirators accepted aspart of bargains involving guilty pleas to one or two offenses demonstrates that defendant'ssentence was premised on vindictiveness. County Court's discussion of its reasons for imposingthe sentence further reveals that a lengthy sentence is thoroughly justified, based upon suchfactors as the number and seriousness of defendant's offenses, the large scale of the drugoperation in which he was engaged upon his arrest, and the fact that at the age of 35, defendanthad spent most of his adult life in prison and, in the brief intervals when he was released, hadquickly returned to crimes that often involved the sale of drugs. Nevertheless, after carefulconsideration of defendant's age and all of the relevant factors, we find it appropriate to reducethe sentence in the interest of justice by directing that defendant's sentences on his convictionsfor criminal sale of a controlled substance in the first degree (counts 92, 105, 137 and 172) shallrun concurrently to one another; that his sentences on his convictions for attempted criminalpossession of a controlled substance in the first degree (counts 177 and 187) and criminal sale ofa controlled substance in the second degree (counts 161, 173 and 182) shall run concurrently toone another and consecutively to the previously imposed sentences; that his sentences forcriminal sale of a controlled substance in the third degree (counts 169 and 185) and criminalpossession of a controlled substance in the third degree (count 181) shall run consecutively toone another and to the previously imposed sentences; and that his sentences for conspiracy in thesecond degree (count 1), operating as a major trafficker (count 258) and attempted criminalpossession of a controlled substance in the third degree (count 178) shall run concurrently to oneanother and to the previously imposed sentences, resulting in an aggregate prison term of 55years to life (see People v Powell,12 AD3d 932, 933 [2004], lv denied 4 NY3d 802 [2005]; People v Harris,288 AD2d 610, 619 [2001], affd 99 NY2d 202 [2002]).
Defendant failed to preserve his claims that Penal Law § 220.77 isunconstitutionally vague (see People vLancaster, 143 AD3d 1046, 1052 [2016], lv denied 28 NY3d 1147 [2017]), thatthe charges against him for criminal sale of a controlled substance and the charge of [*8]conspiracy in the second degree were duplicitous (see People vWhitehead, 130 AD3d at 1143), that a judge who issued a sealing order was unauthorized todo so (see People v Buckley, 75 NY2d at 846), and that some of Guiry's testimonyconstituted inadmissible hearsay (see id.). We decline to take corrective action in theinterest of justice as to these issues. Defendant's remaining contentions, including his claims thatCounty Court erred in limiting his cross-examination of certain witnesses and in failing toexclude a witness from the courtroom, have been examined and found to be without merit.
Peters, P.J., McCarthy, Rose and Aarons, JJ., concur. Ordered that the judgment is modified,as a matter of discretion in the interest of justice, by resentencing defendant as directed herein toan aggregate prison term of 55 years to life, and, as so modified, affirmed.
Footnote 1:Defendant was tried withcodefendants Richard Collier, Marquese Johnson, Jamel Pearson, Anthony Taylor and MichaelWilliams. This Court has affirmed codefendant Franklin Russell's guilty plea (People v Russell, 143 AD3d 1188[2016]).
Footnote 2:Defendant does not contend thathe was misidentified.
Footnote 3:Defendant's claim that CountyCourt's response to an anonymous note from a juror was inadequate is likewise unpreserved (see People v Robinson, 121 AD3d1179, 1181 [2014]), and his remaining claim regarding one of the alternate jurors is moot, asnone of the alternates participated in deliberations (see People v Haardt, 129 AD3d 1322, 1322 [2015]; People v Rivera, 7 AD3d 358, 359[2004], lv denied 3 NY3d 741 [2004]).
Footnote 4:Defendant's only objection to theAllen charge is the assertion that it became improperly coercive when taken incombination with the previous supplemental instruction—a claim that necessarily failsbased upon our conclusion herein.