| People v Rodriguez |
| 2021 NY Slip Op 03872 [195 AD3d 1237] |
| June 17, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Willie Rodriguez, Appellant. |
Willie Rodriguez, Comstock, appellant pro se.
David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered November 28, 2018, upon a verdict convicting defendant of the crimes of criminalpossession of a weapon in the second degree and criminal possession of a controlled substance inthe third degree.
In February 2018, following a joint investigation by the Ulster Regional Gang EnforcementNarcotics Task Force and the Community Narcotics Enforcement Team, defendant was indictedand charged with one count of criminal possession of a weapon in the second degree, one countof criminal sale of a controlled substance in the third degree and one count of criminal possessionof a controlled substance in the third degree.[FN1] The charges stemmed from the targetedpurchase of two handguns that had been reported stolen from the vehicle of a retired policeofficer in December 2018. As part of an undercover buy operation, a confidential informant(hereinafter CI) purchased one of the stolen handguns and, minutes later, defendant allegedlypurchased the other. Police thereafter executed a traffic stop of defendant's vehicle and, followinga search thereof, found, among other things, a loaded Smith & Wesson .380 caliber handgunand a quantity of heroin in the vehicle.[FN2] Defendant filed an omnibus motion seeking to,among other things, dismiss the indictment and suppress the evidence seized but, following ahearing, County Court denied the suppression motion. Following a jury trial, defendant wasconvicted of criminal possession of a weapon in the second degree and criminal possession of acontrolled substance in the third degree but was acquitted of criminal sale of a controlledsubstance in the third degree. County Court denied defendant's subsequent motion to set aside theverdict pursuant to CPL 330.30, and he was thereafter sentenced to a prison term of 13 years, tobe followed by five years of postrelease supervision, on the second degree criminal possessionconviction and to a lesser concurrent prison term on the remaining conviction. Defendantappeals.
Initially, defendant's contention that the integrity of the grand jury proceedings was impairedbased upon the People's presentation of the charges to multiple grand juries and improperlyamending the indictment is unpreserved for our review as these issues were not addressed in hismotion to dismiss the indictment (see CPL 210.20 [3]; People v Sutton, 174 AD3d 1052,1054 [2019], lv denied 34 NY3d 954 [2019]).[FN3] Similarly, defendant waived any claimregarding the misjoinder of defendants as he failed to raise this issue before County Court(see People v Peters, 249 AD2d 987, 987 [1998], lv denied 92 NY2d 903 [1998];People v Dumblewski, 61 AD2d 875, 876 [1978]).[FN4] Additionally, as defendant has not challengedthe legal sufficiency of the evidence presented at trial, it is presumed legally sufficient and,therefore, his contention that the legal instructions provided to the grand jury were insufficient isprecluded (see [*2]CPL 210.30 [6]; People v Weaver, 167 AD3d 1238,1239 [2018], lv denied 33 NY3d 955 [2019]).
Defendant next contends that County Court erred in denying his suppression motion becausethe police lacked probable cause to effectuate a stop of his motor vehicle. We disagree. Police arepermitted to conduct a traffic stop where there is "a reasonable suspicion that the driver oroccupants of the vehicle have committed, are committing, or are about to commit a crime" (People v Houghtalen, 89 AD3d1163, 1164 [2011] [internal quotation marks and citation omitted]). To that end, a CI's tip"may provide reasonable suspicion . . . if the People demonstrate the informant'sreliability and the basis of his or her knowledge" (People v Portelli, 116 AD3d 1163, 1164 [2014] [internal quotationmarks and citation omitted]; accordPeople v Cook, 134 AD3d 1241, 1243 [2015], lv denied 26 NY3d 1143 [2016]).Police officers are also "entitled to act upon information received from other officers" (People v Douglas, 42 AD3d 756,758 [2007], lv denied 9 NY3d 922 [2007]; see People v Cummings, 157 AD3d 982, 984 [2018], lvdenied 31 NY3d 982 [2018]). Ultimately, the "[f]actual determinations of the suppressioncourt are entitled to great weight and will not be overturned unless clearly contrary to theevidence, taking into consideration the court's credibility determinations" (People v Weishaupt, 118 AD3d1100, 1102 [2014] [internal quotation marks and citation omitted]; see People v Rudolph, 170 AD3d1258, 1259 [2019], lv denied 34 NY3d 937 [2019]).
The evidence at the suppression hearing established that, on December 21, 2018, twohandguns were reported stolen from the vehicle of a retired police officer in the Village ofSaugerties, Ulster County. The following day, a state trooper received a telephone call from a CIindicating that a person by the name of "Cutty" had offered to sell him the subject guns. Thetrooper worked with this CI on over 20 prior narcotics and firearm operations wherein he hadprovided reliable and trustworthy information and, in turn, the trooper passed this information onto a detective from the Ulster County Sheriff's Department. The detective was activelyinvestigating the stolen guns, was familiar with Cutty, i.e., Skylar Eichert, and knew his homeaddress. An undercover purchase operation was thereafter organized, a surveillance team wasassembled, the CI was searched, provided with $1,000 in prerecorded buy money and outfittedwith an audio recording device, and an undercover officer thereafter drove the CI to Eichert'sresidence to purchase the two handguns.
At approximately 8:00 p.m., the CI entered Eichert's residence. Approximately 10 minuteslater, while the CI was still inside, a black Honda Accord with Wisconsin license plates arrivedand a Hispanic male—later identified as defendant—exited the driver side of thevehicle and entered the same residence. The surveillance team listened to the transaction in realtime via [*3]the CI's recording device as the CI, Eichert anddefendant discussed the purchase of the guns. A few minutes later, the CI exited the residencewith a backpack and informed the undercover officer that he had purchased one of the two gunsbut that defendant was presently in the residence purchasing the second one. This informationwas relayed to the surveillance team and the CI and the undercover officer then left the scene togo to a predetermined meet location while the surveillance team remained behind to continuesurveilling the residence and the black Honda. Approximately five minutes later, defendantexited the residence and drove off in the Honda. The officers followed defendant and, a fewblocks later, effectuated a traffic stop. Defendant exited the driver side of the vehicle with hishands in the air and was taken into custody, and a pistol magazine and one round of ammunitionwas found in his right pants pocket. Defendant thereafter told officers that there was a handgun inthe glove box of his vehicle, where it was subsequently located. A subsequent search of a femalepassenger revealed that she had a quantity of heroin on her person.
Based on the foregoing, we find that County Court appropriately determined that the policehad a reasonable suspicion of criminal activity to justify the stop of defendant's vehicle. Theofficers who effectuated the traffic stop had been informed by the undercover officer that theCI—who had been demonstrated to be reliable and trustworthy—had purchased oneof the two stolen handguns and indicated that the individual who entered Eichert's residence afterhim was purchasing the second stolen handgun. The surveilling officers had observed thisindividual enter the residence, had overheard the subsequent discussion regarding the guns on theCI's recording device and thereafter observed the same individual exit the residence.Accordingly, the officers had a reasonable suspicion that defendant had committed a crime and,therefore, the stop of defendant's vehicle was lawful (see People v Cook, 134 AD3d at1243; People v Portelli, 116 AD3d at 1164), as was the search of his vehicle and hisarrest (see People v Clark, 153AD3d 1093, 1095 [2017], lv denied 30 NY3d 979 [2017]; People v Coffey, 107 AD3d 1047,1049-1050 [2013], lv denied 21 NY3d 1041 [2013]).
We find no error with County Court's challenged evidentiary rulings.[FN5] With respect to the admission of the audiorecording from the CI's recording device, the People properly authenticated the recording,identified the voices thereon and established that it was genuine and had not been tampered with(see People v Ely, 68 NY2d 520, 527 [1986]; People v Lind, 133 AD3d 914, 915 [2015], lv denied 27NY3d 1153 [2016]; People vGalunas, 107 AD3d 1034, 1034 [2013]). Although certain portions of the audio aredifficult to understand, a transcript of the recording was used by the jury for the limited purposeof following along at trial, and there is no [*4]dispute that thetranscript accurately reflected the audible portions of the recorded conversations. We concur,therefore, with County Court that the recording was independently audible so as "to allow thejurors to discern [its] contents without resorting to speculation" (People v Russell, 167 AD3d 1326,1329 [2018], lv denied 33 NY3d 981 [2019]; see People v Pettigrew, 161 AD3d 1306, 1309 [2018], lvdenied 32 NY3d 940 [2018]; People v Rostick, 244 AD2d 768, 768 [1997], lvdenied 91 NY2d 929 [1998]). Additionally, defendant's challenge to a purportedly hearsaystatement testified to by the undercover officer is unpreserved (see People v Sukhdeo, 103 AD3d673, 674 [2013], lv denied 21 NY3d 914 [2013]). Further, regarding certain hearsaystatements attributed to Eichert, these challenges were rendered moot as said statementspertained solely to the charge for which defendant was acquitted (see People v Rouse, 155 AD3d555, 556 [2017], lv denied 30 NY3d 1119 [2018]).
Defendant's remaining contentions do not require extended discussion. Defendant'scontention that County Court provided improper responses to two jury notes was not preservedfor our review (see People vLeonard, 177 AD3d 1158, 1162 [2019], lv denied 34 NY3d 1160 [2020]). To theextent that he contends that said responses constituted a mode of proceedings error, thechallenged jury notes only requested to view trial exhibits that had already been admitted intoevidence and, therefore, the court's actions were ministerial not substantive in nature (see People v Nealon, 26 NY3d152, 161 [2015]; People vHerring, 189 AD3d 1614, 1615 [2020], lv denied 36 NY3d 1097 [2021]).Defendant also failed to preserve his contentions that the People engaged in prosecutorialmisconduct during summation (seePeople v Hilton, 185 AD3d 1147, 1150 [2020], lv denied 35 NY3d 1095 [2020])and committed a Brady violation (see People v Pizarro, 185 AD3d 1092, 1093-1094[2020]).[FN6] In any event,to the extent that the People's purported Brady violation involves allegations that falloutside the record, said claim is more appropriately the subject of a CPL article 440 motion (see People v Brown, 139 AD3d1178, 1179 [2016]).
Finally, we reject defendant's contention that he received ineffective assistance of counsel.The majority of defendant's arguments in this regard involve matters that cannot be determinedwithout reference to information that is outside the record and are more properly raised in thecontext of a CPL article 440 motion (seePeople v Horton, 173 AD3d 1338, 1341-1342 [2019], lv denied 34 NY3d 933[2019]; People v Howe, 164 AD3d951, 952 [2018], lv denied 32 NY3d 1112 [2018]). Further, on the record before us,it is evident that counsel filed appropriate pretrial motions, rendered appropriate evidentiaryobjections at trial, effectively cross-examined witnesses, made cogent opening and closingstatements, pursued a reasonable trial strategy and ultimately obtained an acquittal of one of[*5]the three charges against defendant such that, when viewed intotality, we are satisfied that defendant received meaningful representation (see People v Porter, 184 AD3d1014, 1019 [2020], lv denied 35 NY3d 1069 [2020]). To the extent not specificallyaddressed, defendant's remaining contentions have been reviewed and found to be withoutmerit.[FN7]
Garry, P.J., Lynch and Colangelo, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1:Defendant was indicted as part ofa 20-count indictment involving two codefendants. His codefendants pleaded guilty before histrial.
Footnote 2:The heroin was discoveredfollowing the search of a female passenger in defendant's vehicle. Defendant was alsosubsequently implicated and charged for his alleged involvement in a separate drug sale thatoccurred on December 1, 2018.
Footnote 3:In any event, defendant'scontentions are without merit as there is nothing in the record demonstrating that the subjectcharges were, in fact, presented to multiple grand juries or that the indictment was ever amended.
Footnote 4:Defendant's challenge to theunderlying felony complaint was rendered academic as it was superseded by a valid indictment(see People v Drayton, 183 AD3d1008, 1012 [2020], lv denied 35 NY3d 1065 [2020]; People v Thacker, 173 AD3d1360, 1362 [2019], lv denied 34 NY3d 938 [2019]).
Footnote 5:"[T]rial courts possess broaddiscretion to make evidentiary rulings precluding or admitting evidence and, absent an abuse ofdiscretion, those rulings should not be disturbed on appeal" (People v Caden N., 189 AD3d 84, 96 [2020] [internal quotationmarks and citations omitted], lv denied 36 NY3d 1050 [2021]).
Footnote 6:Defendant also failed to preservehis contention that he was denied his right to a fair trial based upon a purported conflict ofinterest involving the assigned counsel for Gina Julian, a codefendant who testified on his behalfat trial, and the CI (see CPL 470.05 [2]).
Footnote 7:Defendant's claims that he wasdenied the right to proceed pro se during jury selection, was not informed of the need to obtaincivilian clothing prior to trial and that he was improperly classified as a persistent felony offenderare all belied by the record.