| People v Salaam |
| 2007 NY Slip Op 09982 [46 AD3d 1130] |
| December 20, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Rasool W.Salaam, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Alfred D. Chapleau of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Schenectady County (Catena, J.),rendered March 31, 2004, upon a verdict convicting defendant of the crimes of criminalpossession of a controlled substance in the third degree and criminal possession of a controlledsubstance in the fourth degree.
Two days after a controlled drug buy between defendant and a confidential informant, thepolice raided an unoccupied apartment building where they found crack cocaine and arresteddefendant. He was charged with criminal sale of a controlled substance in the third degree andcriminal possession of a controlled substance in the third degree in connection with the drug buy,and criminal possession of a controlled substance in both the third degree and the fourth degreein connection with the raid. After trial, the jury found him guilty of the two charges arising out ofthe raid and acquitted him of the other two counts.
On his appeal, defendant contends that the People failed to present legally sufficient evidenceto prove the elements of possession and intent to sell necessary to sustain his conviction ofcriminal possession of a controlled substance in the third degree (see Penal Law §10.00 [8]; § 220.16 [1]). The issues are not properly preserved, however, because hisgeneral motion to dismiss at the close of the evidence did not direct County Court's attention tothese specific deficiencies in the People's proof (see People v Gray, 86 NY2d 10, 19-20[1995]; People v [*2]Fallen, 249 AD2d 771, 771 [1998],lv denied 92 NY2d 879 [1998]). Were we to consider the issue of possession, we wouldnote that there was evidence that defendant was alone in the building when the raid began, hewas observed throwing packaged cocaine out of a bedroom window during the raid and he wasconfronted by the police as he emerged from that same bedroom where additional cocaine wasthen found. This evidence was sufficient to demonstrate his dominion and control over the drugs(see People v Richardson, 28 AD3d1002, 1004-1005 [2006], lv denied 7 NY3d 817 [2006]). Similarly, as for the issueof intent to sell, we would conclude that the more than 5.8 grams of cocaine found in defendant'spossession and the fact that it was divided into 62 individual plastic packets support the inferencethat he possessed the cocaine for resale (see People v Belo, 240 AD2d 964, 966 [1997],lv denied 91 NY2d 869 [1997]). Although the police officers improperly testified thatcocaine in such quantity and packaging evinced an intent to sell, the error was harmless under thecircumstances here (see People vBerry, 5 AD3d 866, 867 [2004], lv denied 3 NY3d 637 [2004]; People vWright, 283 AD2d 712, 713-714 [2001], lv denied 96 NY2d 926 [2001]). Further,the jury's finding of guilt was not against the weight of this evidence.
Nor are we persuaded that County Court made an incomplete Sandoval ruling whichprevented defendant from making an informed choice as to whether to testify at trial. AlthoughCounty Court stated initially that it was "reserving on [proffered items] 9 through 18 to await thetestimony," it then added that "at this time I will not permit any inquiry, but again, that maychange depending on the testimony." The court then fully explained what it meant in a colloquywith counsel. Our review of the record satisfies us that the court denied items 9 through 18 of thePeople's Sandoval application while recognizing that defendant could "open[ ] the door"by testifying to facts which are in conflict with the otherwise precluded evidence (People vRodriguez, 85 NY2d 586, 591 [1995]; see People v Fardan, 82 NY2d 638, 646[1993]; People v Brown, 252 AD2d 598, 600 [1998], lv denied 92 NY2d 923[1998]). Nothing in the record suggests that defendant misunderstood the court's ruling indeciding whether to testify.
Nor was County Court mandated to give limiting instructions regarding the jury'sconsideration of evidence of certain prior bad acts despite his counsel's choice to forego them(see CJI2d[NY] Molineux). This issue is also unpreserved for appeal (see People v Smith, 41 AD3d 964,965 [2007], lv denied 9 NY3d 881 [2007]; People v Williams, 25 AD3d 875, 876 [2006], lv denied 6NY3d 854 [2006]). Were we to consider it, we would note the extensive discussions on therecord as to whether such an instruction would be given and find that there was no reversibleerror because of defense counsel's clearly expressed opposition to such an instruction for tacticalreasons (see People v Smith, 41 AD3d at 966; cf. People v Russell, 16 AD3d 776, 778 [2005], lv denied 5NY3d 809 [2005]).
Finally, although defendant contends that he was denied the effective assistance of counsel,we conclude that it was meaningful in the totality of the circumstances here (see People vBaldi, 54 NY2d 137, 147 [1981]). "As long as the defense reflects a reasonable andlegitimate strategy under the circumstances and evidence presented, even if unsuccessful, it willnot fall to the level of ineffective assistance" (People v Benevento, 91 NY2d 708,712-713 [1998] [citation omitted]). Significantly, counsel was successful in obtaining defendant'sacquittal of the two B felonies arising out of the controlled drug buy. With the exception of themistaken eliciting of testimony as to a prior drug sale, counsel's conduct of the defense withregard to the raid reflected a considered and reasonable strategy to persuade the jury thatsomeone else had stored the cocaine in the raided apartment. Moreover, contrary to defendant'sclaim, the record reflects that counsel did object to the testimony of police officers that thequantity of drugs recovered evinced [*3]an intent to sell.Accordingly, we do not find that counsel's inadvertent revelation of a prior drug sale duringcross-examination constitutes ineffective assistance (see e.g. People v Whitehead, 23 AD3d 695, 697 [2005], lvdenied 6 NY3d 840 [2006]).
Cardona, P.J., Mugglin, Lahtinen and Kane, JJ., concur. Ordered that the judgment isaffirmed.