| People v Newman |
| 2019 NY Slip Op 01263 [169 AD3d 1157] |
| February 21, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Thomas L. Newman, Appellant. |
Paul J. Connolly, Delmar, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Rita M. Basile of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Broome County (Smith, J.), renderedNovember 4, 2015, upon a verdict convicting defendant of the crimes of criminal possession of acontrolled substance in the third degree (three counts), criminal possession of a controlled substance inthe fourth degree and criminally using drug paraphernalia in the second degree.
In July 2014, City of Binghamton police officers executed a search warrant and discoverednarcotics, cash and items associated with the sale of drugs in an apartment shared by defendant and hisgirlfriend. Defendant was charged with criminal possession of a controlled substance in the third degree(three counts), criminal possession of a controlled substance in the fourth degree and criminally usingdrug paraphernalia in the second degree. After a jury trial, defendant was convicted as charged andsentenced to concurrent prison terms, the longest of which was five years, followed by two years ofpostrelease supervision. Defendant appeals.
County Court properly denied defendant's motion to dismiss the indictment on the ground that thegrand jury proceeding was defective.[FN1] Our review of the grand jury minutes in the light ofdefendant's contentions reveals that the proceeding was conducted before the requisite number ofgrand jurors (see CPL 190.25 [1]; 210.35 [2]; People v Robinson, 156 AD3d 1123, 1128 n 8 [2017], lv denied30 NY3d 1119 [2018]), and the instructions were sufficient to permit the grand jury to make intelligentdeterminations as to whether crimes had been committed and whether there was legally sufficientevidence to establish the crimes' material elements (see People v Calbud, Inc., 49 NY2d 389,394-395 [1980]; People v Waddell, 78AD3d 1325, 1326 [2010], lv denied 16 NY3d 837 [2011]). We find no basis upon whichto conclude that the proceeding "fail[ed] to conform to the requirements of [CPL article 190] to suchdegree that the integrity thereof [was] impaired and prejudice to . . . defendant [might]result" (CPL 210.35 [5]; see People vMalloy, 166 AD3d 1302, 1303 [2018]).
We reject defendant's claim that the verdict was not supported by legally sufficient evidence andwas against the weight of the evidence on the ground that the People failed to prove that he, rather thanhis girlfriend, possessed the contraband found in their apartment. The legal sufficiency argument isunpreserved, as defendant failed to raise it in his general trial motion to dismiss the indictment (see People v Finch, 23 NY3d 408,422-423 [2014]). Nevertheless, "we necessarily review the evidence adduced as to each of theelements of the crimes in the context of our review of defendant's challenge regarding the weight of theevidence" (People v Paige, 77 AD3d1193, 1195 [2010] [internal quotation marks and citations omitted], affd 16 NY3d 816[2011]; see People v Danielson, 9 NY3d342, 348-349 [2007]).
The testimony of the People's witnesses established that Thomas Brady, an investigator with theCity of Binghamton police department and a member of the narcotics task force, applied in July 2014for a warrant to search the persons of defendant and his girlfriend, as well as the apartment where theyresided. Two other members of the narcotics task force surveilled defendant's apartment while waitingfor the warrant to be signed. The officers saw defendant leave the residence and followed his car.When they were notified that the warrant had been signed, the officers pulled defendant over, informedhim of the warrant, searched him and discovered no contraband.[FN2] Defendant was then taken to the police station,where Brady gave him Miranda warnings, told him that the warrant authorized the search of hisresidence and asked him if he would accompany police to the apartment to secure his dogs. Defendantagreed and, upon arriving at the apartment, gave a key to the SWAT team that was attempting to makeentry. The team had difficulty with the key and used a battering ram to enter the apartment.
Defendant, his girlfriend and two children were held in the living room while police searched theresidence. Possessions appearing to belong to a man and a woman were commingled in a bedroom,with most of the man's possessions on the left side of the room and most of the woman's possessions onthe right. In a recipe box on top of a dresser on the right side of the room, officers found a clear plasticcapsule and three "knotted wraps"—described by Brady as corners of plastic bags that had beentied shut—containing what was later found to be crack cocaine. A letter addressed to defendant,another letter addressed to the girlfriend and two more knotted wraps—one containing whatpolice suspected to be a cutting agent and one that proved to contain crack cocaine—werefound in the dresser drawers. A larger plastic bag containing what was later identified as crack cocaine,packaged in 17 knotted wraps, was found in a woman's shoe in a closet on the right side of the room.An unlabeled pill bottle containing 180 oxycodone pills was found in another woman's shoe, and norelated prescription was found. Police found $305 in cash in a woman's purse, and $2,100 was foundin a safe on the left side of the bedroom, where men's clothing was primarily located.
A digital scale, another knotted wrap and a coffee filter containing a white chunky substance werefound close together on top of the kitchen cabinets; later analysis revealed that the contents of the wrapand the filter were not controlled substances. On an outside porch, police found a ceramic platecontaining a razor blade, a plastic bag and white residue that proved not to be a controlled substance.No pipes or other paraphernalia used to ingest drugs were found in the apartment. The officers testifiedthat, during the search, the girlfriend told them that the three knotted wraps found in the recipe boxbelonged to her for personal use. They further testified that defendant asked whether the girlfriendwould be permitted to stay with the children if he "claim[ed] everything," and was told that both wouldbe arrested.
Brady testified that, based on his experience in narcotics investigations, drug users "very seldom"had large amounts of money and were usually found with small amounts of narcotics, empty packagingand implements for the use of drugs. In contrast, drug dealers did not ordinarily have implements forusing drugs, and were likely to have "larger amounts of narcotics [and] . . . scales,packaging material, razor blades, cutting agents, safes" and "large sums of currency." He testified thatcrack cocaine was often sold in wraps like those found in the apartment and that dealers oftenpackaged multiple wraps of crack cocaine together in larger bags to make it easier to transport. Healso testified that a street market existed in Broome County for pills such as oxycodone.
Defendant asserts that the People failed to prove beyond a reasonable doubt that he possessed anycontrolled substances, noting that no such substances were found on his person, that the controlledsubstances found in the apartment were located among the girlfriend's possessions on her side of theshared bedroom and that she provided police with the combination for the safe. Had the jury creditedthese arguments, a different verdict would not have been unreasonable; thus, this Court "must, like thetrier of fact below, weigh the relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony" (People v Bleakley, 69 NY2d490, 495 [1987] [internal quotation marks and citations omitted]).
To demonstrate that defendant constructively possessed the narcotics, the People were required toshow that he "exercised dominion or control over the property by a sufficient level of control over thearea in which the contraband is found" (People v Manini, 79 NY2d 561, 573 [1992] [internalquotation marks and citation omitted]; accordPeople v Alberts, 161 AD3d 1298, 1300 [2018], lv denied 31 NY3d 1114 [2018];see Penal Law § 10.00 [8]; People v Palin, 158 AD3d 936, 938 [2018], lv denied 31 NY3d1016 [2018]). The element of knowledge may also be inferred from proof of a defendant's dominionand control (see People v Muhammad,16 NY3d 184, 188 [2011]). It is undisputed that defendant resided in the apartment, had a key tothe premises and shared the bedroom where the narcotics were found with the girlfriend. The officerswho conducted the search testified that, although the possessions that appeared to belong to a manwere located primarily on the left side of the bedroom, the division was not absolute; some items werecommingled on both sides, supporting an inference that both parties used the whole room. Moreover,the bedroom was configured in such a way that defendant had to pass through the right side of theroom, where the narcotics were found, to reach the left side where his belongings were primarilylocated. There was a letter addressed to defendant in the dresser where some of the narcotics werefound, and the safe that held most of the cash was in plain view and placed on the side of the roomwhere defendant's possessions were located. There was no testimony that the bedroom closet wherethe shoes containing drugs were found was locked or that other efforts had been made to conceal orlimit access to its contents. Moreover, the digital scale and other items associated with the sale of drugswere found in common areas of the apartment. The jury could thus reasonably infer that defendant haddominion and control over the area where the narcotics were found. Viewing the evidence in a neutrallight and deferring to the jury's credibility determinations, we find that the verdict is supported by theweight of the evidence (see People v Palin, 158 AD3d at 940; People v Luciano, 152 AD3d 989,993-994 [2017], lv denied 30 NY3d 1020 [2017]; People v Paige, 77 AD3d at1196).
Defendant next contends that he did not receive meaningful representation at trial due to errors byhis defense counsel. We reject defendant's claim that his counsel failed to object to the People's use ofdefendant's silence against him; upon review, we find that defendant had not made an unequivocalrequest on either alleged occasion (seePeople v Johnson, 150 AD3d 1390, 1395 [2017], lv denied 29 NY3d 1128 [2017])and, thus, such an objection would not have been successful (see generally People v Caban, 5 NY3d 143, 152 [2005]). Moretroubling is defendant's claim that his counsel erred by eliciting damaging information from a detectiveduring cross-examination. Upon defense counsel's inquiry as to why police had not tested items foundin the apartment for fingerprints, the detective responded that "based on [the] investigation, [police] hadinformation that both parties were selling narcotics." Defense counsel initially objected, but thenwithdrew his objection. Although there may have been valid strategic reasons to ask the question aboutfingerprinting (see generally People v Satterfield, 66 NY2d 796, 798-799 [1985]), defendantargues that counsel's question unintentionally elicited prejudicial evidence connecting him to the sale ofdrugs that would not otherwise have been before the jury. Taken alone, even if counsel erred in thisregard, the detective's brief, nonspecific statement was not "so egregious and prejudicial" as to deprivedefendant of a fair trial (People v Turner,5 NY3d 476, 480 [2005] [internal quotation marks and citation omitted]).
However, defendant also claims that he was deprived of a fair trial by his counsel's admission intoevidence of other highly prejudicial information connecting him to the sale of drugs. Duringcross-examination, defense counsel elicited admissions from Brady that he had made certain mistakes inobtaining the search warrant—first, by specifying in the warrant that defendant's vehicle was tobe searched when the application had instead sought authority to search his apartment, and second, byan error as to the timing of the investigation. When Brady could not recall the answer to one of defensecounsel's questions about the application, counsel used it to refresh his recollection, and then offered itinto evidence. The People objected on the ground of relevance, and defense counsel responded thatthe application showed that Brady, who had testified as an expert on drug investigations, hadnevertheless made mistakes in applying for the warrant. County Court overruled the objection andadmitted the application.
Thereafter, out of the jury's presence, County Court specifically asked defense counsel whetherthere was a strategic purpose for admitting the application, and warned that it contained information thatwas not otherwise before the jury. The document stated, as grounds, that a confidential informant(hereinafter CI) had informed Brady that both defendant and the girlfriend had sold crack cocaine tothe CI in their apartment within the past two weeks, that the CI had identified a photograph ofdefendant as the male who had sold him drugs, and that the CI had seen two handguns on defendant'sbed within that same time period. The court discussed the prejudicial nature of this information withdefense counsel, referencing People vWlasiuk (90 AD3d 1405, 1412-1413 [2011]), in which this Court reversed a murderconviction on the ground of ineffective assistance of counsel in part because defense counsel hadoffered a logbook containing prejudicial hearsay into evidence. Counsel stated that he was aware of thecontents of the application, confirmed that he had offered the application to establish Brady's errors,and further advised that the decision had been made after discussion with defendant. As for thereference to handguns, counsel stated that the "whole point" was that no handguns were found in thesearch.
To prove his claim of ineffective assistance, "defendant must demonstrate the absence of strategicor other legitimate explanations for counsel's alleged failure" (People v Nicholson, 26 NY3d 813, 831 [2016]; see People v Hilton, 166 AD3d 1316,1320 [2018]; People v Phillips, 96 AD3d1154, 1156 [2012], lv denied 19 NY3d 1000 [2012]). Here, counsel expressly stated hisstrategic purpose for admitting the application, and it is well established that "counsel's efforts shouldnot be second-guessed with the clarity of hindsight to determine how the defense might have been moreeffective" (People v Benevento, 91 NY2d 708, 712 [1998]; accord People v Thomas, 105 AD3d1068, 1071 [2013], lv denied 21 NY3d 1010 [2013]). Nevertheless, there was noessential connection between counsel's strategic purpose to show the jury the errors in the applicationand the entirely separate information about the CI's alleged drug transactions. The latter informationwas not only irrelevant to the purpose for which counsel offered the application into evidence, but wasalso inadmissible hearsay, as the CI did not testify at trial. Defense counsel offered no strategicexplanation—nor can this Court conceive of one—for failing either to request redaction ofthe information about the CI's claims from the application, or to ask for a limiting instruction to informthe jury of the limited purpose for which the application was admitted, directing it not to consider thehearsay information about the CI's claims as evidence of defendant's guilt.
It must be further considered that the information in the application would not have otherwise comebefore the jury; neither Brady nor any other witness mentioned the CI's claims at trial, no witnessmentioned handguns, and no one claimed to have bought drugs from defendant or witnessed drugtransactions in which he participated. The only other trial evidence that directly indicated thatdefendant had participated in drug transactions was that described above, when defense counsel askedthe detective about the failure to obtain fingerprints.
As defendant argues, the highly prejudicial nature of the information in the application was revealedwithin the People's summation. At the very beginning of the closing argument, before any discussion ofthe physical evidence, the prosecutor immediately brought up the CI's claims, arguing that theinformation in the application established that defendant and the girlfriend "were in an enterprise to sellnarcotics." The prosecutor advised the jury to read the application, asserting that it "clearly show[ed]"that the girlfriend did not act alone in possessing and selling drugs, that defendant and the girlfriendacted together, and that the drugs found in the bedroom belonged jointly to defendant and the girlfriend.The prosecutor returned to the application later, arguing that, although defendant asserted that therewas no evidence that he knew drugs were in the apartment, the jury should "[l]ook at the searchwarrant application. That might help answer that question."[FN3] Despite the inadmissible nature of the application'shearsay information and defense counsel's prior statement as to the limited purpose for which he hadoffered it into evidence, counsel did not object to any of the prosecutor's statements about theapplication. Accordingly, the jury was never informed that the information about the CI's claims wasinadmissible hearsay, and was instead directly advised, without contradiction, that it could consider theinformation as substantive evidence of defendant's guilt (compare People v Hughes, 72 AD3d 1121, 1123 [2010]; People v Montgomery, 22 AD3d 960,962-963 [2005]).
A defendant receives the effective assistance of counsel when "the evidence, the law, and thecircumstances of a particular case, viewed in totality and as of the time of the representation, reveal thatthe attorney provided meaningful representation" (People v Baldi, 54 NY2d 137, 147 [1981];accord People v Speaks, 28 NY3d990, 992 [2016]; People vMangarillo, 152 AD3d 1061, 1066 [2017]). A defendant has a right to a fair trial, not aperfect one; thus, a single error or several minor errors in an otherwise competent performance will notordinarily require reversal so long as, taken singly or together, they did not deprive the defendant of afair trial (see People v Flores, 84 NY2d 184, 187 [1994]). However, in rare cases, even asingle error "may be 'so egregious and prejudicial as to deprive a defendant of his [or her] constitutionalright' to a fair trial" (People v Flowers, 28NY3d 536, 541 [2016], quoting People v Turner, 5 NY3d at 480).
Here, rather than a single error, we are confronted with a set of three closely-related errors at twostages of the trial: the failure to redact the irrelevant and prejudicial hearsay from the search warrantapplication before introducing it for the limited purpose of revealing Brady's errors; the failure to requesta limiting instruction that would have advised the jury of that purpose; and the subsequent failure toobject to the prosecutor's repeated exhortations to the jury to rely on the application's hearsayinformation as proof of defendant's guilt. These errors, as well as the prejudicial testimony elicited fromthe detective, gain particular significance in the light of the close nature of the other evidence. Theadmissible proof that defendant constructively possessed the contraband and had the requisite intent tosell, although adequate to support the verdict, was not overwhelming. Further, the information in theapplication directly contradicted counsel's theory of defense, which was that the girlfriend, and notdefendant, possessed and sold the drugs found in the apartment. Thus, although counsel's challengedconduct took place in the context of an otherwise effective performance, we find that the cumulativeeffect of his errors deprived defendant of a fair trial and requires reversal of the judgment (seePeople v Wlasiuk, 90 AD3d at 1412-1413; see also People v Montgomery, 22 AD3d at962-963; People v Greene, 306 AD2d 639, 643 [2003], lv denied 100 NY2d 594[2003]).
Defendant's remaining contentions are rendered academic by this determination.
Clark, Mulvey, Aarons and Rumsey, JJ., concur. Ordered that the judgment is reversed, on thelaw, and matter remitted to the County Court of Broome County for a new trial.
Footnote 1:Contrary to the People's argument,defendant's convictions do not preclude him from raising this claim, as his appellate challenge to thegrand jury proceeding is not based on the legal sufficiency of the evidence supporting the indictment(see People v Huston, 88 NY2d 400, 411 [1996]).
Footnote 2:Defendant later consented to asearch of his vehicle, in which no contraband was found.
Footnote 3:The prosecutor also referenced thedetective's testimony that police had information that defendant was selling drugs, but placed lessemphasis on that evidence than on the search warrant application.