| People v Williams |
| 2018 NY Slip Op 05227 [163 AD3d 1160] |
| July 12, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Naquan S. Williams, Also Known as Crome,Appellant. |
Stephen W. Herrick, Public Defender, Albany (Jessica M. Gorman of counsel), forappellant.
P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), forrespondent.
Garry, P.J. Appeals (1) from a judgment of the Supreme Court (Breslin, J.), rendered April 3,2015 in Albany County, upon a verdict convicting defendant of the crime of criminal sale of acontrolled substance in the third degree, and (2) by permission, from an order of said court,entered December 9, 2016 in Albany County, which denied defendant's motion pursuant to CPL440.10 to vacate the judgment of conviction, without a hearing.
Defendant was charged with criminal sale of a controlled substance in the third degree after acontrolled transaction in which he sold crack cocaine to a confidential informant (hereinafter CI).He rejected a plea bargain that would have required him to plead guilty to attempted criminal saleof a controlled substance in the third degree in exchange for a sentence of two years in prisonfollowed by three years of postrelease supervision. Later, he accepted a second agreement bywhich he pleaded guilty to the same offense in exchange for a prison term of four years followedby three years of postrelease supervision. He subsequently withdrew his guilty plea. Following ajury trial, defendant was convicted as charged and sentenced to a prison term of 14 yearsfollowed by three years of postrelease supervision. Thereafter, acting pro se, he filed a CPL440.10 motion seeking to vacate the judgment of conviction, which Supreme Court [*2]denied without a hearing. Defendant appeals from the judgment ofconviction and, by permission, from the order denying his CPL 440.10 motion.
Defendant contends that the verdict was not supported by legally sufficient evidence and wasagainst the weight of the evidence in that the People failed to prove his identity as the seller. Thelegal insufficiency claim is unpreserved, as defendant's motion for a trial order of dismissal wasnot specifically based upon the identification issue (see People v Gray, 86 NY2d 10, 19[1995]; People v Green, 141 AD3d1036, 1037 [2016], lv denied 28 NY3d 1072 [2016]). Nevertheless, defendant'schallenge to the weight of the evidence requires this Court to determine whether each element ofthe charged crime was proven beyond a reasonable doubt (see People v Danielson, 9 NY3d 342, 348-349 [2007]; People v Scippio, 144 AD3d 1184,1185 [2016], lv denied 28 NY3d 1150 [2017]).
At trial, a detective of the City of Albany Police Department (hereinafter the detective)testified that he met with the CI before the transaction and searched him to ensure that he was notcarrying contraband. The CI then placed a telephone call to a person whom he called Crome,followed by an exchange of text messages. The detective listened to the telephone call andtestified that he recognized the speaker's voice as that of defendant, whom he had met on severalprevious occasions. The detective then drove the CI to a spot near the prearranged location,equipped him with a digital recording device and gave him cash for the purchase. A seconddetective testified that he watched the CI constantly for about 20 minutes while he waited fordefendant's arrival, and that the CI did not interact with anyone during this period. A vehicle thatthe detective described as "a gold Volvo XE 90 with chrome rims" then arrived at the designatedlocation, and the CI got into the car briefly. The detective recognized the driver as defendant, andhe also recognized the Volvo, having made a previous traffic stop in which defendant wasdriving that vehicle. He was located about 37 yards away. Although the transaction took placeafter sunset, he testified that the Volvo was parked directly under a street light, making itpossible for him to see defendant's features clearly through the vehicle's windows. He identifieddefendant in court as the person who was driving the Volvo, and stated that there was no one elsein the car.
After the transaction, the CI returned to the detective's vehicle and handed over a substancethat proved to be crack cocaine. A second search of his person revealed no contraband.Defendant was driving a different vehicle when he was arrested some eight months later, but thedetective testified that the car contained paperwork from a Volvo dealership referencing theVolvo and including defendant's name. A third detective who did not participate in the controlledtransaction testified that he later listened to an audio recording of the transaction and recognizedthe seller's voice as that of defendant, whom he had known since the mid-1990s and with whomhe had previously interacted 50 to 100 times. He stated that defendant's voice was distinctive andidentified him in court.
The CI's testimony about the transaction was consistent with that of the detectives. He statedthat he had known defendant only as Crome until he learned defendant's name from police whenhe identified his photograph shortly before the transaction. He knew defendant's phone numberbecause he had used it to contact him on previous occasions. He described the vehicle where thetransaction occurred as a "jeep Volvo," acknowledged that he had previously described it only asa "jeep" and stated that he was familiar with the vehicle because he had been in it "many times."He identified defendant in court as the person whom he had formerly known as Crome and fromwhom he had bought drugs in the controlled transaction.
[*3] The CI testified that he had agreed to engage in thetransaction because he "had two sales [himself]" and that he had received a favorable sentence inexchange for his cooperation. On cross-examination, he acknowledged that he was at risk ofbeing sentenced as a persistent felon if he had not cooperated with police, that he had violated theterms of his contract by continuing to sell drugs while working as a CI and that police hadnevertheless permitted him to continue to work for them. He also stated on cross-examinationthat he had obtained the drugs that he sold in the other transactions from defendant, and he addedon redirect that he had purchased drugs from defendant "a lot of times." Finally, the CI describedan incident in which a private investigator had visited him while he was incarcerated and hadtried unsuccessfully to persuade him to sign an affidavit stating that he had bought the drugs inthe controlled transaction from someone other than defendant.
Defendant asserts that the detective's identification is unreliable because of the dark anddistance, and further, that the identification testimony of the other witnesses is unworthy ofbelief. If the jury had accepted these arguments, a different verdict would not have beenunreasonable. Thus, this Court must "weigh the relative probative force of conflicting testimonyand the relative strength of conflicting inferences that may be drawn from the testimony" todetermine whether the jury gave the evidence the weight that it should have been accorded(People v Scippio, 144 AD3d at 1185 [internal quotation marks and citations omitted]; accord People v Cruz, 152 AD3d822, 823 [2017], lv denied 30 NY3d 1018 [2017]). Upon our review, deferring to thejury's credibility assessments and viewing the evidence in a neutral light, we are persuaded thatthe verdict is supported by the weight of the evidence (see People v Scott, 129 AD3d 1306, 1307 [2015], lv denied26 NY3d 1092 [2015]; People vWatkins, 121 AD3d 1425, 1426 [2014], lv denied 24 NY3d 1124 [2015]).
We reject defendant's contention that the identification evidence should not have beenadmitted in the absence of a Rodriguez hearing to test the witnesses' claims of priorfamiliarity with defendant. Defendant requested a Rodriguez hearing for the first time onthe first day of trial. Supreme Court was authorized to summarily deny this untimely request,and, as defendant made no showing of good cause for the delay, the court did not abuse itsdiscretion in declining to entertain the motion (see CPL 255.20 [1], [3]; see generally People v Jackson, 48AD3d 891, 893 [2008], lv denied 10 NY3d 841 [2008]; People v Sheremet, 41 AD3d1038, 1039-1040 [2007], lv denied 9 NY3d 881 [2007]).
Defendant next contends that he was denied a fair trial by Supreme Court's admission ofalleged improper testimony. Initially, we reject the claim that the detective's testimony about hisprevious contacts with defendant was inadmissible. Contrary to defendant's assertion, noMolineux hearing was required, as the challenged testimony did not describe anyuncharged crimes or bad acts; the detective merely stated that he had encountered defendant onseveral occasions before the controlled transaction, without mention of arrests or othercrime-related conduct. Even if, as defendant suggests, the testimony was prejudicial because thejury could have inferred that defendant had been involved in other criminal activity, thedetective's testimony provided necessary background information explaining his ability toidentify defendant (see People vMcCommons, 143 AD3d 1150, 1153 [2016], lv denied 29 NY3d 999 [2017]).Supreme Court cured any prejudice with an appropriate limiting instruction, which the jury ispresumed to have followed (see Peoplev Vanderhorst, 117 AD3d 1197, 1200 [2014], lv denied 24 NY3d 1089 [2014]).For similar reasons, we find no error in the court's admission of the CI's testimony that he hadcalled and texted defendant on other occasions before the [*4]controlled transaction.[FN*]
Defense counsel elicited the first testimony from the CI relative to other drug purchases fromdefendant; counsel asked how many people he had bought drugs from while he was undercontract with the police to act as a CI. We agree with Supreme Court that thisquestioning—which the CI answered by testifying that he had bought drugs fromdefendant and one other person—opened the door for the People to make further inquiry(see People v Smith, 157 AD3d978, 980-981 [2018]). We note that the court permitted the People to ask only one questionon this subject, sustained defendant's objection to additional questioning and promptly instructedthe jury not to consider the testimony as evidence of a propensity to commit crime.
Defendant failed to preserve his appellate claim that the third detective's testimony aboutrecognizing defendant's voice on the audio recording was improper bolstering, as he made noobjection on that ground at trial (seePeople v Hughes, 114 AD3d 1021, 1023 [2014], lv denied 23 NY3d 1038[2014]). To the extent that he also argues that the third detective's testimony about his manyprevious encounters with defendant was improperly prejudicial, Supreme Court did not err inoverruling defendant's Molineux objection. As with the first detective, the challengedtestimony provided background information explaining the third detective's ability to identifydefendant's voice, and there was no reference to any crimes or bad acts. Even if we were to findthat this testimony was improperly admitted, we would nonetheless find the error to be harmless,as the evidence against defendant was overwhelming (see People v Shortell, 155 AD3d 1442, 1444-1445 [2017], lvdenied 31 NY3d 1087 [2018]; People vKalina, 149 AD3d 1264, 1267 [2017], lv denied 29 NY3d 1092 [2017]).
Defendant's objection that the detective was improperly allowed to give hearsay testimonywas unpreserved. Certain other testimony to which he now objects was stricken upon hisobjection. We have examined his remaining evidentiary objections and found them to be withoutmerit.
We likewise reject defendant's contention that he was denied a fair trial by improper remarksduring the prosecutor's summation. To the extent that defendant's appellate claims are preserved(see CPL 470.05 [2]; People vStanford, 130 AD3d 1306, 1309 [2015], lv denied 26 NY3d 1043 [2015]), mostof the challenged statements were responsive to defense counsel's sharply critical remarks insummation about the credibility of the People's witnesses, or were "fair comment on the evidenceand the reasonable inferences to be drawn therefrom" (People v Head, 90 AD3d 1157, 1158 [2011]; see People v Cherry, 46 AD3d1234, 1237-1238 [2007], lv denied 10 NY3d 839 [2008]). Supreme Court sustainedseveral of defendant's objections and gave limiting instructions where appropriate, and we findnothing in the summation that was so prejudicial as to deny defendant's right to a fair trial (see People v Thomas, 155 AD3d1120, 1123-1124 [2017]; People vRessy, 141 AD3d 839, 843 [2016], lv denied 28 NY3d 1030[2016]).
[*5] By not raising it at sentencing,defendant failed to preserve his claim that his sentence was imposed in retaliation for exercisinghis constitutional right to trial (see People v Hurley, 75 NY2d 887, 888 [1990]; People v Haskins, 121 AD3d1181, 1185 [2014], lv denied 24 NY3d 1120 [2015]). In any event, the fact that asentence imposed after trial is longer than one offered in plea negotiations does not establishvindictiveness where, as here, nothing else in the record supports defendant's claim (see People v Massey, 45 AD3d1044, 1048 [2007], lv denied 9 NY3d 1036 [2008]). Supreme Court declined thePeople's request to sentence defendant as a persistent felon, and the sentence imposed was lessthan the potential maximum (see Penal Law § 70.70 [4] [b] [i]). In view ofdefendant's lengthy criminal record—which includes a prior violent felonyconviction—and his failure to accept responsibility for his actions, we do not find thatdefendant's sentence is harsh or excessive (see People v Dowling, 75 AD3d 838, 841 [2010]).
We note, however, that although Supreme Court referred to defendant at sentencing as asecond felony offender, the record establishes that he was in fact sentenced as a second felonydrug offender with a violent predicate felony (compare Penal Law § 70.06[3] [b]; [4] [b], with Penal Law § 70.70 [4] [b] [i]). The uniform sentenceand commitment form and the certificate of conviction must be amended accordingly (see People v Williams, 145 AD3d1188, 1191 [2016], lv denied 29 NY3d 1002 [2017]; People v Labaff, 127 AD3d 1471,1472 [2015], lv denied 26 NY3d 931 [2015]; People v Feliciano, 108 AD3d 880, 881 n 1 [2013], lvdenied 22 NY3d 1040 [2013]).
Turning to the denial of defendant's CPL 440.10 motion, defendant contends that the Peoplecommitted a Brady violation by failing to disclose that the CI had been arrested andcharged in 2000 with rape in the first degree and endangering the welfare of a child, that thecharges were later reduced to sexual assault, and that the CI was prosecuted by the AlbanyCounty District Attorney's office. Defendant failed to submit documentation that he claimedwould establish this claim. However, even assuming that his assertions were sufficient toestablish a Brady violation, the CI acknowledged that he had previously been convictedof several other crimes and that he was working off new drug sale charges at the time of thecontrolled transaction. He was cross-examined on these issues, and his testimony describing thecontrolled transaction was consistent with that of the People's other witnesses. For these reasons,we agree with Supreme Court that there is no reasonable possibility that the nondisclosurecontributed to the verdict (see People v Pressley, 91 NY2d 825, 827 [1997]; People v Benloss, 117 AD3d 1071,1072 [2014], lv denied 23 NY3d 1059 [2014]; People v Griffin, 48 AD3d 894, 895-896 [2008], lv denied10 NY3d 959 [2008]). Accordingly, the motion was properly denied.
McCarthy, Clark, Rumsey and Pritzker, JJ., concur. Ordered that the judgment and order areaffirmed, and matter remitted for entry of an amended uniform sentence and commitment formand an amended certificate of conviction.
Footnote *:Defendant did not object toSupreme Court's limiting instruction about the CI's testimony when it was given; accordingly, hisappellate claim that the instruction was itself prejudicial is unpreserved (see People v Irby, 140 AD3d 1319,1323 [2016], lv denied 28 NY3d 931 [2016]).