| People v Small |
| 2019 NY Slip Op 05720 [174 AD3d 1130] |
| July 18, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Naquan D. Small, Appellant. |
Del Atwell, East Hampton, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Mariah Foster, Law Intern), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Broome County (Dooley, J.),rendered February 9, 2017, upon a verdict convicting defendant of the crimes of criminal sale ofa controlled substance in the third degree and criminal possession of a controlled substance in thethird degree.
In April 2016, defendant was charged by indictment with one count of criminal sale of acontrolled substance in the third degree and one count of criminal possession of a controlledsubstance in the third degree arising from an allegation that he sold heroin to a confidentialinformant (hereinafter CI) during a "buy-bust" operation at a convenience store located in theCity of Binghamton, Broome County. Defendant subsequently filed an omnibus motion seeking,among other things, suppression of the CI's show-up identification, which motion County Courtsummarily denied without a hearing. Following a jury trial, defendant was convicted as chargedand he was thereafter sentenced, as a second felony offender, to concurrent prison terms of 10years on each conviction, to be followed by three years of postrelease supervision. Defendantappeals.
We affirm. Defendant's conviction was supported by legally sufficient evidence and was notagainst the weight of the evidence. When conducting a legal sufficiency analysis, "we mustevaluate whether, after viewing the evidence in the light most favorable to the People, anyrational trier of fact could have found the essential elements of the crime beyond a reasonabledoubt" (People v Williams, 150AD3d 1315, 1317 [2017] [internal quotation marks and citation omitted], lv denied30 NY3d 984 [2017]). As relevant here, "[a] person is guilty of criminal sale of a controlledsubstance in the third degree when he [or she] knowingly and unlawfully sells . . . anarcotic drug" (Penal Law § 220.39 [1]). Additionally, "[a] person is guilty ofcriminal possession of a controlled substance in the third degree when he [or she] knowingly andunlawfully possesses . . . a narcotic drug with intent to sell" (Penal Law§ 220.16 [1]).
The evidence presented at trial established that, on April 11, 2016, defendant was the targetof a controlled buy-bust operation by the Broome County Special Investigations Unit after itreceived information from a CI indicating that he could purchase drugs fromdefendant.[FN1] The CI,who had known defendant for seven or eight years, placed a call to defendant, while aninvestigator listened over a speakerphone, and made arrangements to meet him at the corner ofStuyvesant Street and Court Street in Binghamton to purchase a quantity of heroin for $100. Thepolice subsequently searched the CI for contraband, provided him with $100 in prerecorded buymoney and dropped him off near the proposed meet location where numerous other members ofthe task force were stationed to surveil the transaction. The CI thereafter met defendant at theagreed-upon location and proceeded to enter the nearby convenience store, whereupon the CIgave defendant the $100 in prerecorded buy money in exchange for 10 glassine bags of herointhat he observed defendant pull out of the front of his pants. Following the transaction, the CIexited the convenience store and removed his hat—the preapproved signal to lawenforcement that the drug transaction was complete—and defendant was thereafter takeninto custody by police. Defendant was subsequently searched and found to be in possession ofthe $100 in prerecorded buy money, as well as an additional $1,140 in cash. After the transactionwas completed, the police did a drive-by of the convenience store where the CI confirmeddefendant's identity as the individual who had sold him the subject heroin. Lab testingsubsequently confirmed that the substance that the CI procured from defendant tested positive forthe presence of heroin.
Viewing the foregoing evidence in a light most favorable to the People, we find that thePeople submitted legally sufficient to establish that defendant knowingly and unlawfullypossessed a narcotic drug, with the intent to sell it, and that he was the individual who knowinglyand unlawfully sold heroin to the CI on April 11, 2016 (see Penal Law§§ 220.16 [1]; 220.39 [1]; People v Thomas, 169 AD3d 1255, 1256 [2019], lv denied33 NY3d 1036 [2019]; People vQuintana, 159 AD3d 1122, 1124-1125 [2018], lv denied 31 NY3d 1086 [2018]).Additionally, although a different verdict would not have been unreasonable, we note that thetestimony of the police officers who surveilled the subject controlled buy corroborated the CI'sversion of events and defendant's identity as the individual with whom the CI met. Therefore,viewing the evidence in a neutral light and according deference to the jury's credibilitydeterminations, we also find that the verdict is not against the weight of the evidence (see People v Morris, 165 AD3d1489, 1490 [2018], lv denied 32 NY3d 1207 [2019]; People v Miller, 160 AD3d 1040,1043 [2018], lv denied 32 NY3d 939 [2018]).
We find unavailing defendant's contention that County Court erred when it denied his motionto suppress any in-court identification of him by the CI without conducting a suppressionhearing. Here, because the People's affidavit in response to defendant's omnibus motionadequately established that the CI and defendant knew one another, the subject identificationprocedure was merely confirmatory and not susceptible to undue police suggestiveness, such thatno hearing was necessary (see People v Rodriguez, 79 NY2d 445, 449-450, 453 [1992];People v Rodriguez, 47 AD3d417, 417 [2008], lv denied 10 NY3d 816 [2008]; People v Small, 201 AD2d315, 315 [1994], lv denied 83 NY2d 876 [1994]; People v Cherny, 179 AD2d938, 939 [1992], lv denied 79 NY2d 998 [1992]).[FN2] Lastly, defendant's contention that CountyCourt failed to abide by the procedure set forth in CPL 400.21 in adjudicating him a secondfelony offender is unpreserved for our review as defendant did not render any such objection atsentencing (see People v Small, 166AD3d 1237, 1239 [2018]; People vWilliams, 155 AD3d 1253, 1255 [2017], lv denied 31 NY3d 1089[2018]).[FN3] In any event,defendant was provided a predicate felony statement at sentencing, admitted to the prior felonyconviction and did not otherwise contest the legality of the conviction (see People vSmall, 166 AD3d at 1239).
Garry, P.J., Lynch, Mulvey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:The investigator in charge of theoperation indicated that he had previously used the CI in other cases and found the informationthat he provided to be reliable.
Footnote 2:The CI testified before the grandjury that he had known defendant for approximately seven to eight years and that they hadtraveled to New York City together on one occasion. The People also provided a supportingdeposition from the CI indicating that he had been purchasing heroin from defendant in the threeweeks immediately prior to the alleged April 2016 sale at issue.
Footnote 3:In January 2017, defendant alsopleaded guilty to a separate indictment charging him with one count of perjury in the first degreeafter he provided false testimony during a parole revocation hearing. At the February 9, 2017sentencing, defendant was sentenced for both his convictions on the subject drug charges andupon his guilty plea to perjury in the first degree. With respect to perjury conviction, defendantwas sentenced, as a second felony offender, to a prison term of 3 to 6 years, with said sentence torun concurrently with the prison term imposed upon the subject drug convictions (see Peoplev Small, 166 AD3d at 1238).