| People v Seecoomar |
| 2019 NY Slip Op 05727 [174 AD3d 1154] |
| July 18, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Ravin Seecoomar, Appellant. |
Samuel N. Iroegbu, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the Supreme Court (Milano, J.), rendered July 21,2016 in Schenectady County, upon a verdict convicting defendant of the crimes of criminal saleof a controlled substance in the third degree, criminal possession of a controlled substance in thethird degree (four counts), criminal possession of a controlled substance in the seventh degreeand criminally using drug paraphernalia in the second degree.
Defendant was charged, in a nine-count indictment, with numerous drug crimes stemmingfrom the sale of cocaine to a confidential informant (hereinafter CI) as part of a controlled buyoperation and the subsequent execution of a search warrant, during which police found, amongother things, cocaine, a scale, a large sum of money and other drug paraphernalia. Following ajury trial, defendant was found guilty of criminal sale of a controlled substance in the thirddegree, criminal possession of a controlled substance in the third degree (four counts), criminalpossession of a controlled substance in the seventh degree and criminally using drugparaphernalia in the second degree. Supreme Court thereafter sentenced defendant, as a secondfelony offender, to prison terms of six years followed by three years of postrelease supervisionupon his convictions of criminal sale of a controlled substance in the third degree and criminalpossession of a controlled substance in the third degree, and to lesser concurrent prison terms forthe remaining convictions. Defendant appeals, and we affirm.
Initially, County Court (Sypniewski, J.) properly denied defendant's motion for aMapp/Dunaway hearing, "as the motion 'failed to set forth any sworn allegations of factsupporting the grounds for the application' " (People v Durfey, 170 AD3d 1331, 1336 [2019], quoting People v Gilmore, 72 AD3d 1191,1192 [2010]; see People v Mendoza, 82 NY2d 415, 422 [1993]). The same can be said ofdefendant's claim that he should have been granted a Darden hearing, as his motionpapers did not set forth a factual basis to warrant such a hearing (see People v Brown, 167 AD3d1331, 1333 [2018]; People v Hamilton, 276 AD2d 715, 716 [2000], lvdenied 96 NY2d 759 [2001]). As for defendant's claim that the search warrant was defective,the recording of the controlled buy established probable cause for the search warrant (see People v Crooks, 27 NY3d609, 615 [2016]). In addition, probable cause was also supported by information from thepolice officers who were directly involved in the controlled buy operation and, thus, CountyCourt properly denied defendant's motion to suppress the physical evidence (see People v Luciano, 152 AD3d989, 992 [2017], lv denied 30 NY3d 1020 [2017]).
We are unpersuaded by defendant's contention that the verdict is against the weight of theevidence. This contention stems from an affidavit executed by the CI prior to trial that stated,among other things, that he did not purchase drugs from defendant on the day set forth in theindictment. "A weight of the evidence review requires us first to decide whether, based on all thecredible evidence, a different finding would not have been unreasonable, and[,] . . .[if not], weigh the relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony. When conducting a review of theweight of the evidence, we view the evidence in a neutral light and defer to the jury's credibilityassessments" (People v Nunes, 168AD3d 1187, 1188 [2019] [internal quotation marks and citations omitted], lv denied33 NY3d 979 [2019]; see People v Bleakley, 69 NY2d 490, 495 [1987]).
At trial, the CI testified to the events that occurred the day he conducted the controlled buy.Specifically, he explained that he telephoned defendant asking him if he could come to hisapartment later that day to purchase an "eight ball" (approximately 3.5 grams of cocaine) for$200, to which defendant replied affirmatively. The CI then detailed the specifics of thecontrolled buy at length, including that he was searched prior to and at the conclusion of thecontrolled buy and that he wore audio and video recording equipment during theoperation.[FN*] Moreover,the recording of the controlled buy was played for the jury. The CI also testified that he executedan affidavit before trial in an attempt to help defendant because the two had been friends foryears. The CI explained that defendant and his wife prepared the affidavit, that he signed it whileat defendant's apartment and then he had it notarized by one of defendant's friends. The Peoplequestioned the CI about the affidavit, line by line, and the CI indicated which statements werecorrect and which were false. Notably, the CI indicated that, at the time he executed the affidavit,he believed that the date of the controlled buy, as alleged by the police, was incorrect, but that hehad since learned that it was in fact correct. Although the affidavit stated that the policefabricated evidence, the CI testified that such statement was incorrect and that neither he nor thepolice manufactured any evidence. Ultimately, the CI testified that his in-court testimony wastrue and that the contents of the affidavit were largely false.
In addition, multiple police officers testified regarding the controlled buy and subsequentsearch of defendant's home. Luciano Savoia, a detective sergeant, and Ryan Kent, a policeofficer, described monitoring the controlled buy operation, explaining that the CI was equippedwith various recording devices, including a GPS tracker to closely monitor the CI's movements toand from defendant's apartment. Both Savoia and Kent described their observations of the CIduring the controlled buy, including Savoia's testimony that he observed the CI enter the buildingwhere defendant lived and then exit a short time later. Kent added that he searched the CI prior tothe controlled buy and that, immediately after returning, the CI handed him a sandwich bag thatcontained a substance that was ultimately determined to be cocaine. Savoia explained that, afterthe controlled buy, the police department applied for and was granted a search warrant fordefendant's home. Savoia also testified that, as the search warrant was being executed and whiledefendant was being taken into custody outside his residence, defendant was repeatedly yelling"flush it" while looking in the direction of his apartment. As such, Savoia explained that he wasconcerned that potential evidence may be destroyed, so he and several other police officersentered defendant's apartment. Those police officers described executing the search warrantinside the apartment, wherein they discovered, among other things, a scale, a large bag of a whitepowder-like substance and a folded dollar bill containing a similar white powder, which was latertested and confirmed to be cocaine.
Based upon the foregoing, a different verdict would not have been unreasonable because thejury could have entirely rejected the CI's trial testimony in light of his affidavit (see People v Pierre, 162 AD3d1325, 1327 [2018], lv denied 32 NY3d 1007 [2018]; People v Arnold, 85 AD3d 1330,1331-1332 [2011]). The jury, however, chose to credit the testimony of the CI and the policeofficers, as well as the audio and video recording of the controlled buy. Accordingly, viewing theevidence in a neutral light and according due deference to the jury's credibility determinations,we find that the verdict was not against the weight of the evidence (see People v Brown, 163 AD3d1170, 1172 [2018]; People vMiller, 160 AD3d 1040, 1043 [2018], lv denied 32 NY3d 939 [2018]).
Defendant's argument that he was denied a fair trial because Supreme Court allowed thePeople to ask the CI leading questions is unpreserved for review (see People v Owens, 149 AD3d1561, 1562 [2017], lv denied 30 NY3d 982 [2017]). Were this issue properly beforeus, we would find it to be without merit, as it was not an abuse of discretion for the court to allowthe use of leading questions to ensure that the CI's testimony did not run afoul of the court'sVentimiglia ruling (see generallyPeople v Martina, 48 AD3d 1271, 1272 [2008], lv denied 10 NY3d 961 [2008];People v Cuttler, 270 AD2d 654, 655 [2000], lv denied 95 NY2d 795[2000]).
To the extent preserved, we are unpersuaded by defendant's claim that reversal is requiredbased upon a Rosario violation. "A Rosario violation will lead to reversal only ifthere is a 'reasonable possibility' that nondisclosure contributed to the verdict" (People v Auleta, 82 AD3d 1417,1420-1421 [2011], lv denied 17 NY3d 813 [2011], quoting People v Williams, 50 AD3d 1177,1179 [2008]). Here, the People admit that a Rosario violation occurred because one oftheir police officer witnesses lost notes taken during the investigation. The People became awareof the lost notes the day before the witness was scheduled to testify, and they promptly informedSupreme Court and defense counsel of same. The People expressed that it was theirunderstanding that the notes indicated that evidence provided to the witness had come fromanother police officer. Although the notes may have potentially provided impeachment evidence,their limited value is rendered immaterial given the overwhelming evidence of defendant's guilt(see People v Auleta, 82 AD3d at 1421; People v Crandall, 38 AD3d 996, 997 [2007], lv denied 9NY3d 842 [2007]).
We are also unpersuaded by defendant's arguments that he did not receive the effectiveassistance of counsel. "To establish a claim of ineffective assistance of counsel, [a] defendant isrequired to demonstrate that he [or she] was not provided meaningful representation and thatthere is an absence of strategic or other legitimate explanations for counsel's allegedly deficientconduct" (People v Lancaster, 143AD3d 1046, 1051 [2016] [internal quotation marks and citations omitted], lv denied28 NY3d 1147 [2017]; see People vCaban, 5 NY3d 143, 152 [2005]). "Meaningful representation simply requires thatdefense counsel's efforts reflect that of a reasonably competent attorney" (People vLancaster, 143 AD3d at 1052 [internal quotation marks and citation omitted]; see People v Oathout, 21 NY3d127, 128 [2013]). Here, defendant's assertion that counsel failed to requestMapp/Dunaway and Darden hearings and challenge the search warrant as beingdefective is belied by the record. Defendant's additional claims of ineffective assistance arelacking in merit as he fails to establish "an absence of a legitimate or strategic reason" forcounsel's alleged shortcomings (People v Lancaster, 143 AD3d at 1052; see People v Williams, 156 AD3d1224, 1231 [2017], lv denied 31 NY3d 1018 [2018]). Overall, it is clear from therecord that counsel provided meaningful representation to defendant, including seeking a trialorder of dismissal that resulted in dismissal of two counts of the indictment. Thus, we concludethat defendant was afforded meaningful representation (see People v Brown, 169 AD3d 1258, 1260 [2019], lvdenied 33 NY3d 1029 [2019]; People v Wynn, 149 AD3d 1252, 1256 [2017], lv denied 29NY3d 1136 [2017]; People v Izzo,104 AD3d 964, 968 [2013], lv denied 21 NY3d 1005 [2013]).
Finally, defendant's assertion that Supreme Court interfered with jury deliberations is notpreserved for our review as no objection was made on the record during the trial (see People v Gause, 38 AD3d 999,1000-1001 [2007], lv denied 9 NY3d 865 [2007]; People v Hooks, 305 AD2d166, 167 [2003], lv denied 100 NY2d 562 [2003]). Defendant's remaining contentionshave been examined and are lacking in merit.
Garry, P.J., Egan Jr., Clark and Devine, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant contends, for the firsttime on appeal, that the police equipping the CI with a recording device without a valideavesdropping warrant is a violation of his Fourth Amendment rights. Inasmuch as defendantfailed to raise this argument before Supreme Court, it is unpreserved for our review (see People v Schaefer, 163 AD3d1179, 1180 [2018], lv denied 32 NY3d 1007 [2018]). Were the issue properly beforeus, we would find it devoid of merit (seePeople v Cleveland, 14 AD3d 798, 799 [2005], lv denied 4 NY3d 829 [2005];People v Dieppa, 176 AD2d 1076, 1076 [1991], lv denied 79 NY2d 855 [1992]).