| People v Richardson |
| 2018 NY Slip Op 04605 [162 AD3d 1328] |
| June 21, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Karreim Richardson, Appellant. |
Danielle Neroni Reilly, Albany, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Clark, J. Appeal from a judgment of the Supreme Court (McDonough, J.), rendered July 1,2016 in Albany County, upon a verdict convicting defendant of the crime of criminal possessionof a weapon in the second degree (five counts).
In May 2015, a detective with the City of Albany Police Department received informationfrom a confidential informant (hereinafter CI) indicating that the CI was able to procure firearmsfrom a contact by the name of "Trey." An investigation of the telephone number furnished by theCI revealed that the number was registered out of Virginia in defendant's name, and the decisionwas made to initiate a controlled buy operation targeting defendant. After a series of monitoredtelephone calls and text messages, defendant initially agreed to sell one firearm to the CI throughthe mail, which was thereafter successfully intercepted by law enforcement. As a result ofadditional controlled telephone calls and text messages, defendant agreed to drive from Virginiato the City of Albany to sell the CI five more firearms under the ruse that the CI would resell thefirearms in the Albany area. On July 19, 2015, pursuant to an arrest warrant, defendant wasapprehended and arrested on the University at Albany campus, along with the three otheroccupants of his vehicle. A search of said vehicle resulted in the recovery of five firearms of thesort requested by the CI. Defendant was then charged with five counts of criminal possession of aweapon in the second degree and, following a jury trial with his codefendant, was convicted ascharged. Supreme Court thereafter sentenced him to five concurrent prison terms of 12 years,followed by five years of postrelease supervision. Defendant appeals, and weaffirm.
[*2] Initially, defendant argues that the warrantfor his arrest lacked the requisite probable cause and, thus, any physical evidence seized orstatements made to police upon his arrest should have been suppressed. While defendant didmove for such relief in his omnibus motion and a Mapp/Dunaway/Huntley hearing was infact held, the record reveals that defendant withdrew his motion after the suppression hearing,thereby abandoning his motion and rendering unpreserved any challenges with respect to thewarrant (see CPL 470.05 [2]; People v Collier, 146 AD3d 1146, 1147 [2017], lv denied30 NY3d 948 [2017]; People vWilliams, 45 AD3d 1466, 1467 [2007], lv denied 10 NY3d 818 [2008]).Relatedly, defendant inaccurately asserts that Supreme Court denied his request for aDarden hearing. Rather, the court expressly reserved decision on the request until afterthe suppression hearing, subject to defendant's renewal, which was never made (see generally People v Lewis, 39 AD3d1025, 1026 [2007]).
Turning to defendant's evidentiary challenges, defendant's contentions that photographs oftext messages and audio recordings of telephone conversations between him and the CI wereadmitted without proper foundation are unpreserved for our review in light of his failure to objectto the admission of such evidence at trial (see People v Muller, 155 AD3d 1091, 1093 [2017], lvdenied 30 NY3d 1118 [2018]; People v Chappelle, 126 AD3d 1127, 1128 [2015], lvdenied 25 NY3d 1161 [2015]). Were these arguments preserved, we would find that thePeople established a proper foundation for both the admission of the photographs (see People v Green, 107 AD3d915, 916-917 [2013], lv denied 22 NY3d 1088 [2014]; compare People v Price, 29 NY3d472, 477 [2017]) and the audio recordings (see People v Starr, 114 AD3d 813, 814 [2014], lv denied 23NY3d 1068 [2014]; compare People vVanhoesen, 31 AD3d 805, 807-808 [2006]).
Defendant also contends that, in violation of People v Trowbridge (305 NY 471,476-477 [1953]) and the Confrontation Clauses of the State and Federal Constitutions(see US Const 6th Amend; NY Const, art I, § 6), two police officers wereimpermissibly allowed to testify as to pretrial identifications of defendant made by the CI, whodid not testify. Defendant largely failed to preserve this contention by not making properobjections at trial (see People vCade, 110 AD3d 1238, 1241 [2013], lv denied 22 NY3d 1155 [2014]; People v Carter, 40 AD3d 1211,1212 [2007], lv denied 9 NY3d 864 [2007]). However, in one instance, defendant didobject on Trowbridge grounds to the testimony by one police officer that the CI hadidentified defendant in a photo array. This statement, as well as all of the challenged testimony,was elicited on cross-examination by defense counsel (see People v Rosenberg, 103 AD3d 531, 532 [2013], lvdenied 21 NY3d 946 [2013]) and, moreover, was admissible to explain the events thatprecipitated defendant's arrest (seePeople v Mulligan, 118 AD3d 1372, 1374 [2014], lv denied 25 NY3d 1075[2015]; People v Capers, 94 AD3d1475, 1476 [2012], lv denied 19 NY3d 971 [2012]).
As for defendant's Molineux challenge, we find that Supreme Court did not abuse itsdiscretion in permitting evidence of defendant's uncharged controlled sale of a gun through themail and the communications between him and the CI regarding the sale of firearms. Suchevidence was relevant in establishing defendant's motive and intent, an overall scheme or planand the absence of mistake, as well as to provide necessary background information, and wasmore probative than prejudicial (seePeople v Victor, 139 AD3d 1102, 1109 [2016], lv denied 28 NY3d 1076 [2016];People v Kidd, 112 AD3d 994,995-996 [2013], lv denied 23 NY3d 1039 [2014]). With respect to the testimony thatdefendant was in possession of a stolen firearm, which was not initially part of the People'sproffer or encompassed by the court's Molineux ruling, the court limited the potential forany undue prejudice by instructing the jury, on two occasions, not to infer that defendant had apropensity for criminality based upon his possession [*3]of theallegedly stolen firearm (see People vRoberts, 161 AD3d 1381, 1382-1383 [2018]; People v Palin, 158 AD3d 936, 941 [2018], lv denied 31NY3d 1016 [2018]). Lastly, defendant did not object to the testimony that law enforcementbelieved "some parties were coming up to exchange some guns and . . . what [they]believed to be cocaine for money." If his challenge to the foregoing testimony had beenpreserved, we would find that such testimony provided necessary context and backgroundinformation or otherwise completed the relevant witness's narrative (see People v Rivera, 124 AD3d1070, 1073 [2015], lv denied 26 NY3d 971 [2015]).
Further, defendant failed to object to the litany of statements during the prosecutor'ssummation that he now contends deprived him of a fair trial, rendering his prosecutorialmisconduct argument unpreserved (seePeople v Kerley, 154 AD3d 1074, 1076 [2017], lv denied 30 NY3d 1106 [2018];People v Johnson, 151 AD3d1462, 1465-1466 [2017], lv denied 30 NY3d 1106 [2018]).[FN*] In any event, our review of the record revealsthat each of the challenged statements was fair comment on the evidence and made in directresponse to defense counsel's summation (see People v Deshane, 160 AD3d 1216, 1218 [2018]; People v Cole, 150 AD3d 1476,1482 [2017]; People v Anderson,149 AD3d 1407, 1414 [2017], lv denied 30 NY3d 947 [2017]; People v Wynn, 149 AD3d 1252,1256 [2017], lv denied 29 NY3d 1136 [2017]).
We next address defendant's various claims of ineffective assistance of counsel."[D]efendant's criticisms of counsel must amount to more than a simple disagreement withcounsel's strategies, tactics or the scope of possible cross-examination" (People v Ildefonso, 150 AD3d1388, 1388 [2017] [internal quotation marks, brackets and citation omitted], lvdenied 30 NY3d 980 [2017]; seePeople v Perillo, 144 AD3d 1399, 1403 [2016], lv denied 29 NY3d 951 [2017])and, "so long as the evidence, the law, and the circumstances of a particular case, viewed intotality, reveal that [counsel] provided meaningful representation, the constitutional requirementwill be satisfied" (People v Rivers,152 AD3d 1054, 1058 [2017] [internal quotation marks, brackets, ellipsis and citationsomitted], lv denied 30 NY3d 1063 [2017]; see People v Anthony, 152 AD3d 1048, 1053 [2017], lvdenied 30 NY3d 978 [2017]).
Defendant argues that counsel should have moved to dismiss the indictment when he was notproduced to testify before the grand jury. The record establishes that the People provideddefendant with notice of the grand jury proceeding and that defendant, in turn, provided timelywritten notice of his intent to appear before the grand jury as a witness on his own behalf(see CPL 190.50 [5] [a]). However, it is not evident on this record why, or whether,defendant did not testify before the grand jury. Thus, as this claim involves matters outside of therecord, it [*4]is more properly explored through a CPL 440.10motion (see People v Graham, 138AD3d 1242, 1244 [2016], lv denied 28 NY3d 930 [2016]; People v Harrison,304 AD2d 376, 377 [2003], lv denied 100 NY2d 621 [2003]). Moreover, we note that thefailure to timely file a motion to dismiss the indictment on CPL 190.50 (5) grounds, withoutmore, does not constitute ineffective assistance of counsel (see People v Graham, 138AD3d at 1244; see also People v Wiggins, 89 NY2d 872, 873 [1996]; People v Hogan, 118 AD3d 1263,1264 [2014], affd 26 NY3d 779 [2016]).
To the extent that defendant claims that counsel's failure to preserve many of the foregoingcontentions together amounted to the ineffective assistance of counsel, "counsel will not be foundto be ineffective on the basis that he or she failed to make an argument or motion that has little orno chance of success" (People vPichardo, 160 AD3d 1044, 1049 [2018] [internal quotation marks and citationsomitted]; see People v Stultz, 2NY3d 277, 287 [2004]; People vJohnson, 151 AD3d 1462, 1466 [2017], lv denied 30 NY3d 1106 [2018]). Inaddition, defendant did not refute the possibility that defense counsel's failure to object to certainundesirable testimony was a purposeful choice, made to avoid drawing further attention to it (see People v Rodriguez, 135 AD3d1181, 1186 [2016], lv denied 28 NY3d 936 [2016]). Our review of the record as awhole confirms that counsel provided meaningful representation by, among other things, makingappropriate pretrial and trial motions, effectively cross-examining the People's witnesses andpresenting a cogent opening statement and summation (see People v Alberts, 161 AD3d 1298, 1305-1306 [2018]; People v Pottorff, 145 AD3d 1095,1098 [2016], lv denied 30 NY3d 1063 [2017]; People v Ramos, 133 AD3d 904, 909 [2015], lv denied 26NY3d 1149 [2016]). Significantly, defense counsel presented a plausible defense, which includedthe testimony of three witnesses, one of whom testified that he had inadvertently left firearms indefendant's vehicle and all three of whom refuted that the subject telephone number belonged todefendant (see People v Anthony, 152 AD3d at 1053-1054; People v Place, 152 AD3d 976,980 [2017], lv denied 30 NY3d 1063 [2017]).
Finally, we are unpersuaded that defendant's sentence was harsh or excessive. Where, ashere, the sentence falls within the permissible statutory range (see Penal Law§ 70.02 [3] [b]), we will not disturb it unless we find that the sentencing courtabused its discretion or extraordinary circumstances exist warranting a modification (see People v Gabriel, 155 AD3d1438, 1442 [2017], lv denied — NY3d — [May 31, 2018]; People v Edwards, 124 AD3d 988,992 [2015], lv denied 25 NY3d 1201 [2015]). We discern nothing from the record, or thearguments advanced by defendant on appeal, that indicates that Supreme Court abused itsdiscretion or that any such extraordinary circumstances are present (see People v Blanco, 156 AD3d945, 946 [2017]; People v Edwards, 124 AD3d at 992; People v Bianca, 91 AD3d 1127,1130 [2012], lv denied 19 NY3d 862 [2012]).
Defendant's remaining contentions, to the extent not specifically discussed herein, have beenexamined and lack merit.
McCarthy, J.P., Devine, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Although the codefendant didobject to one of the remarks that defendant now challenges, by failing to join in that objection,defendant did not preserve his argument with respect thereto (see People v Buckley, 75NY2d 843, 846 [1990]; People vAnderson, 149 AD3d 1407, 1413 [2017], lv denied 30 NY3d 947 [2017]). If thisargument had been preserved, we would find that the prosecutor's remark concerning DNAevidence from an unidentified female donor on one firearm was fair comment on the evidence,and Supreme Court's subsequent limiting instruction mitigated any potential prejudice (seePeople v Armonte, 287 AD2d 645, 646 [2001]).