| People v Whaley |
| 2010 NY Slip Op 01543 [70 AD3d 570] |
| February 23, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v William Whaley, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Vincent Rivellese of counsel), forrespondent.
Judgment, Supreme Court, New York County (Charles J. Tejada, J., at suppression hearing;Daniel Conviser, J., at jury trial and sentence), rendered April 4, 2008, convicting defendant ofcriminal sale of a controlled substance in the third degree and criminal possession of a controlledsubstance in the seventh degree, and sentencing him, as a second felony drug offender, to anaggregate term of four years, unanimously affirmed.
The court properly exercised its discretion in denying defendant's mistrial motion based oncertain portions of the People's summation, since the court's curative actions were sufficient toprevent the remarks in question from causing any prejudice (see People v Santiago, 52NY2d 865 [1981]). By failing to object, by failing to make specific objections, or by failing torequest further relief after the court sustained objections, defendant failed to preserve hisremaining challenges to the prosecutor's summation, and we decline to review them in theinterest of justice. As an alternative holding, we find no basis for reversal. Isolated instances ofprosecutorial misconduct on summation are insufficient to justify reversal in the absence of anobdurate pattern of inflammatory remarks throughout the prosecutor's summation or unless theprosecutorial misconduct is "so pervasive, so egregious" and "the prosecutor's disregard of thecourt's rulings and warnings is . . . deliberate and reprehensible" (People vD'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993][citation and internal quotation marks omitted]).
Since one of the charges in the indictment was third-degree possession under Penal Law§ 220.16 (1), the court properly permitted the People to introduce testimony that defendantwas carrying a large amount of cash at the time of his arrest. This testimony was probative of theessential element of intent to sell (see e.g. People v Leak, 66 AD3d 403 [2009]; People v White, 257AD2d 548 [1999], lv denied 93 NY2d 930 [1999]), and the People "were not bound tostop after presenting minimum evidence" (People v Alvino, 71 NY2d 233, 245 [1987]).The court also properly exercised its discretion when it declined to preclude this testimony onthe ground of the People's inability to produce the cash in court (cf. People v Walker,249 AD2d 15 [1998]). Defendant's claim that the physical condition of the money was critical tohis defense is unpersuasive, and the court's adverse inference charge was a more than adequateremedy. [*2]Defendant's challenges to the contents of the adverseinference charge and the court's limiting instruction on the proper evidentiary use of the moneyare unpreserved and we decline to review them in the interest of justice. As an alternativeholding, we also reject them on the merits.
The court properly denied defendant's suppression motion. There is no basis for disturbingthe court's credibility determinations, which are supported by the record (see People vProchilo, 41 NY2d 759, 761 [1977]). To the extent that defendant is claiming that he isentitled to suppression of evidence on the basis of trial testimony, that claim is unavailing. Trialtestimony may not be used to support a challenge to a court's ruling at a pretrial hearing (seePeople v Abrew, 95 NY2d 806, 808 [2000]). Defendant also claims that his counselrendered ineffective assistance by failing to seek reopening of the suppression hearing based onalleged inconsistencies between hearing and trial testimony. However, we find that defendantreceived effective assistance under the state and federal standards (see People vBenevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466US 668 [1984]). The alleged inconsistencies were insignificant, and defendant would not havebeen entitled to suppression under either the hearing or trial versions of how the arresting officerrecovered the drugs defendant was holding during an apparent drug transaction. Accordingly,counsel could have reasonably concluded that reopening the hearing would be futile. In anyevent, regardless of whether counsel should have made the application, there is no reason tobelieve it would have led to reopening of the hearing or suppression of the drugs (seee.g. People v Sylvain, 33 AD3d330, 331 [2006], lv denied 7 NY3d 904 [2006]). Concur—Tom, J.P.,Moskowitz, Renwick, DeGrasse and Manzanet-Daniels, JJ.