| People v Pearson |
| 2017 NY Slip Op 05270 [151 AD3d 1455] |
| June 29, 2017 |
| Appellate Division, Third Department |
[*1](June 29, 2017)
| The People of the State of New York,Respondent, v Jamel Pearson, Appellant. |
Kindlon Shanks & Associates, Albany (Kathy Manley of counsel), for appellant.
Eric T. Schneiderman, Attorney General, New York City (Matthew B. Keller of counsel), forrespondent.
Mulvey, 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 criminal sale of acontrolled substance in the second degree (four counts), criminal sale of a controlled substance inthe third degree and attempted criminal possession of a controlled substance in the third degree(five counts).
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, other counties in New York and Vermont. He was charged by twoindictments with multiple crimes related to the possession and sale of narcotics. Following a jointjury trial,[FN1] defendantwas convicted of four counts of criminal sale of a controlled substance in the second degree(counts 2, 3, 5 and 32), one count of criminal possession of a controlled substance in the thirddegree (count 6) and five counts of attempted [*2]criminalpossession of a controlled substance in the third degree (counts 20, 23, 24, 27 and 28).[FN2] He was sentenced as a secondviolent felony offender to an aggregate prison term of 87 years to be followed by five years ofpostrelease supervision. Defendant now appeals.
Defendant argues that the guilty verdict with regard to counts 2, 3 and 5 for criminal sale of acontrolled substance in the second degree was against the weight of the evidence. Upon ourindependent weight of the evidence review, we first determine whether a different finding wouldnot have been unreasonable and, if not, we "must weigh conflicting testimony, review anyrational inferences that may be drawn from the evidence and evaluate the strength of suchconclusions" (People v Danielson, 9NY3d 342, 348 [2007]; accordPeople v Wynn, 149 AD3d 1252, 1254 [2017]; see People v Reeves, 124 AD3d 1068, 1068 [2015], lvdenied 25 NY3d 1076 [2015]). "Issues of credibility and the weight to accord testimony arematters to be resolved by the trier of fact, who is free to accept or reject any part of the testimonypresented" (People v Lancaster, 143AD3d 1046, 1047 [2016] [internal quotation marks and citations omitted], lv denied28 NY3d 1147 [2017]; see People vCrooks, 129 AD3d 1207, 1208 [2015], affd 27 NY3d 609 [2016]; People v Lanier, 130 AD3d 1310,1311 [2015], lv denied 26 NY3d 1009 [2015]).
Several police officers testified to three controlled buy operations involving defendant inMarch, April and September 2011. James Wood, a detective with the City of Albany PoliceDepartment, testified that he directed a confidential informant (hereinafter CI) to call defendantto arrange the purchase of $1,000 worth of crack cocaine on each of the three separate occasions,and the conversations were recorded. Wood—who was familiar with defendant and hisvoice from prior interactions—listened in on the calls and identified defendant's voice onthe recordings. Before and after each meeting, Wood searched the CI for contraband and money.On all three dates, defendant met the CI at the designated location and, under the supervision ofseveral police officers, the CI briefly entered defendant's vehicle, purchased the crack cocaineand then returned to his own vehicle and drove back to police custody. During two of thetransactions, other officers, serving as the "eyes" of the operation, identified defendant as theseller. Moreover, during each transaction, the CI wore a body wire and, despite the poor audioquality of the recordings, Wood was able to identify defendant's voice on the recordings andtranslated the coded drug sale language employed. Following each transaction, the CI returnedwith a plastic bag containing crack cocaine weighing more than one-half ounce. Viewing all ofthe evidence in a neutral light, weighing the conflicting testimony and according deference to thejury's credibility determinations, we find that, even if a different verdict would not have beenunreasonable, the weight of the evidence fully supports the challenged convictions (see People v Heard, 92 AD3d1142, 1143-1144 [2012], lv denied 18 NY3d 994 [2012]; People v Morris, 25 AD3d 915,916-918 [2006], lv denied 6 NY3d 851 [2006]).
Furthermore, we find that County Court did not abuse its discretion in denying defendant'suntimely request for a missing witness charge (see People v Carr, 14 NY3d 808, 809 [2010]). A request for such acharge "must be raised as soon as practicable so that the court can appropriately exercise itsdiscretion and the parties can tailor their trial strategy to avoid [*3]substantial possibilities of surprise" (People v Gonzalez, 68NY2d 424, 428 [1986] [internal quotation marks and citation omitted]; accord People v Turner, 73 AD3d1282, 1283 [2010], lv denied 15 NY3d 896 [2010]; see People v Carr, 14NY3d at 809). Here, while the People listed the CI as a potential witness in their pretrialdiscovery, the People did not call the CI to testify during their chronological presentation of theproof early in this trial regarding the sales involving this CI, which occurred some two monthsbefore the close of proof. Defendant was thus aware that the CI would not testify at theconclusion of the People's case, but did not make this charge request until after the close of proofand, thus, the request was untimely (seePeople v Alexander, 127 AD3d 1429, 1433 [2015], lv denied 25 NY3d 1197[2015]; People v Turner, 73 AD3d at 1283-1284). Moreover, defense counsel's closingsummation heavily emphasized the People's failure to call the CI, despite calling CIs involved inpurchases from the codefendants, effectively urging the jury to draw an adverse inference due tothe failure to call the CI (see People vDarby, 72 AD3d 1280, 1283 [2010], lv denied 15 NY3d 749 [2010]). Thisameliorated any prejudice.
Defendant also claims that County Court erred in delivering a supplemental instruction to thedeliberating jury prior to a weekend recess without notice to and consultation with counsel, andthat the instruction was coercive. We recently addressed and rejected a similar claim in a decisionupholding the convictions of codefendant Guy Anderson (People v Anderson, 149 AD3d 1407, 1415-1416 [2017]). We addthat defendant's reliance on CPL 310.30 is misplaced, inasmuch as the instructions before therecess to which defendant objects were not in response to a jury note or inquiry (see CPL310.10 [2]; compare People v O'Rama, 78 NY2d 270, 276-277 [1991]; People v Morrison, 148 AD3d1707, 1708 [2017]). Defendant raises no specific criticisms regarding the instruction beyonda general claim that it was improperly coercive, which we reject, having previously concludedthat the charge given " 'was balanced and neutral in tone, and . . . did noturge any dissenting jurors to abandon their 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 v Anderson, 149 AD3d at 1415, quoting People v Coleman, 64 AD3d 787,787 [2009], lv denied 13 NY3d 835 [2009]; see People v Vazquez, 145 AD3d 1268, 1270-1271 [2016]). Wealso note that, although not conclusive, the jury continued to deliberate and acquitted defendanton two counts and was unable to reach a verdict on the conspiracy count, further underminingany contention that the court's instruction coerced a verdict (see People v Anderson, 116 AD3d 499, 500-501 [2014], lvdenied 24 NY3d 958 [2014]; compare People v Aponte, 2 NY3d 304, 309 [2004]).
Defendant also argues that a litany of trial errors deprived him of a fair trial. We disagree.Defendant's contention that County Court erred in denying his motion to discharge an alternatejuror who admitted to having read news articles regarding the case is moot, since, as we havenoted in a codefendant's appeal, the potential juror did not participate in deliberations (seePeople v Anderson, 149 AD3d at 1414 n 3; People v Haardt, 129 AD3d 1322, 1322 [2015]; People v Rivera, 7 AD3d 358, 359[2004], lv denied 3 NY3d 741 [2004]). Further, upon receiving a note alleging thatmembers of the jury had fallen asleep during portions of the testimony, the court noted that it hadnot observed any of the jurors sleeping, but nevertheless issued an instruction for the jury torequest breaks when necessary. As defendant did not object to this course of action, his claim oferror is unpreserved for our review (seePeople v Blond, 96 AD3d 1149, 1152-1153 [2012], lv denied 19 NY3d 1101[2012]; People v Busreth, 35 AD3d965, 967 [2006], lv denied 8 NY3d 920 [2007]).
Finally, with regard to the sentence, we are persuaded that defendant's aggregate sentence of87 years in prison, although legally permissible, should be reduced in the interest of justice(see CPL 470.15 [6] [b]; People v Delgado, 80 NY2d 780, 783 [1992]; Peoplev Perry, 70 [*4]AD3d 1063, 1065 [2010], lv denied14 NY3d 804 [2010]; People v Sheppard, 273 AD2d 498, 500 [2000], lv denied95 NY2d 908 [2000]). Considering the circumstances of his crimes and his prior criminal history,we modify defendant's sentence by directing that the sentences for counts 2, 3, 5 and 32 runconcurrently to each other, but consecutively to the other counts, and directing that the sentencesfor counts 20, 23, 24, 27 and 28 run concurrently to each other, but consecutively to the othercounts. Therefore, defendant's sentence will be an aggregate prison term of 32 years, to befollowed by five years of postrelease supervision.
Defendant's remaining contentions have been considered and determined to be lacking inmerit.
McCarthy, J.P., Egan Jr., Rose and Devine, JJ., concur. Ordered that the judgment ismodified, as a matter of discretion in the interest of justice, by directing that defendant'ssentences for criminal sale of a controlled substance in the second degree under counts 2, 3, 5and 32 of the indictment shall run concurrently to each other and consecutively to the remainingsentences imposed, and that defendant's sentences for attempted criminal possession of acontrolled substance in the third degree under counts 20, 23, 24, 27 and 28 of the indictment shallrun concurrently to each other and consecutively to the other sentences imposed, and, as somodified, affirmed.
Footnote 1:Defendant was jointly tried withfive codefendants. This Court recently handed down decisions with regard to codefendant GuyAnderson (People v Anderson, 149AD3d 1407 [2017]) and codefendant Michael Williams (People v Williams, 150 AD3d 1315 [2017]).
Footnote 2:The jury acquitted defendant onone count of criminal sale of a controlled substance in the second degree and one count ofattempted criminal possession of a controlled substance in the third degree. The jury was unableto reach a verdict on the conspiracy charge against defendant. In addition, County Court grantedthe People's pretrial motion to dismiss one count of criminal sale of a controlled substance.