| People v Darby |
| 2010 NY Slip Op 02997 [72 AD3d 1280] |
| April 15, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Leroy W.Darby, Also Known as William Neal Jr., Also Known as William L. Darby, Also Known as B,Appellant. |
—[*1] Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Columbia County (Nichols,J.), rendered October 28, 2008, upon a verdict convicting defendant of the crimes of criminalsale of a controlled substance in the third degree (three counts) and criminal possession of acontrolled substance in the seventh degree (three counts).
In January 2008, an undercover officer, while accompanied by a confidential informant,purchased cocaine on three separate occasions from an individual identified as B. Defendant waslater identified by the undercover officer as the seller in a photo array conducted at policeheadquarters and subsequently charged in a six-count indictment with criminal sale of acontrolled substance in the third degree (three counts) and criminal possession of a controlledsubstance in the seventh degree (three counts).[FN1]After trial, defendant was found guilty as [*2]charged andsentenced to an aggregate prison term of 16 years, plus four years of postrelease supervision.Defendant now appeals.
Initially, defendant claims that the evidence presented at trial was not legally sufficient toestablish that he sold cocaine to the undercover officer and that his conviction was not supportedby the weight of the credible evidence. We disagree. The undercover officer testified that he hadthree face-to-face encounters with the seller, provided a detailed description of him shortly afterthe sales took place and positively identified defendant in court as the individual who sold himthe cocaine. The undercover officer's supervisor witnessed the third transaction and alsoidentified defendant in court as the seller. Moreover, a videotape was made of the encountersand, while defendant apparently could not be identified from what appeared on the tape, it didserve to corroborate the officer's testimony that each transaction did, in fact, take place. Thisevidence provided a legally sufficient basis for defendant to be convicted of selling cocaine tothe undercover officer and established that the jury's guilty verdict was supported by the weightof the credible evidence introduced at trial (see People v Douglas, 57 AD3d 1105, 1105-1106 [2008], lvdenied 12 NY3d 783 [2009]; People v Morton, 56 AD3d 1054, 1055-1056 [2008], lvdenied 12 NY3d 761 [2009]; seegenerally People v Guthrie, 57 AD3d 1168, 1170 [2008], lv denied 12 NY3d816 [2009]).
Next, defendant takes issue with the fact that the identity of the confidential informant wasnot disclosed and, as a result, he was not able to call the informant as a witness at trial. Inaddition, he claims that County Court committed reversible error by refusing to give the jury amissing witness charge in light of the prosecution's decision not to call the confidential informantas a witness. While we are troubled by the failure to disclose the identity of the informant giventhe level of his involvement in these transactions, we note that defendant never established howthe informant's testimony would be relevant to his defense. Instead, defense counsel simplyalleged without any specificity that the testimony of the confidential informant would "tend to beexculpatory and will create a reasonable doubt as to the reliability of the prosecution's case."Moreover, defense counsel conceded that "I am not asking to have him brought in on the issue ofidentity . . . I am seeking to have him brought in as a material witness to thetransaction and a participant in the transaction." Under the circumstances, it was not possible forCounty Court to determine if defendant's application for disclosure of the confidential informantwas nothing more than "merely an angling in desperation for possible weaknesses in theprosecution's investigation" and, as such, was properly denied (People v Goggins, 34NY2d 163, 169 [1974], cert denied 419 US 1012 [1974]; see People v Garcia, 66 AD3d699, 700 [2009]; People vWilson, 18 AD3d 1070, 1071 [2005]).
Moreover, as to defendant's request for a missing witness charge, all of the evidenceintroduced at trial established that, if called, the confidential informant's testimony would havebeen cumulative to that already given by police officers who testified as to the circumstancessurrounding the three sales (see People v Guthrie, 57 AD3d at 1170; People v Ruffins, 31 AD3d 1180,1181 [2006]; People v Wilson, 18 AD3d at 1071 n). We also note that while defendantdid not receive the benefit of such a charge, his counsel did comment extensively duringsummation and, in effect, urged the jury to draw an adverse inference against the prosecutionbecause of its failure to call the informant as a witness at trial.[*3]
We do agree that defendant's name should not have beenplaced on transcripts prepared by the prosecution that were given to the jury when it viewed thevideotapes of the drug transactions. However, County Court did instruct the jury that it shouldnot regard references in the transcript to defendant as "evidence of his identity as the person"who made these sales to the undercover officer. Moreover, in light of the other evidenceintroduced at trial establishing defendant's guilt, we cannot conclude that the use of his name onthese transcripts, given the court's admonition, played a significant role in the jury's decision toconvict him or constituted reversible error requiring a new trial (see People v Carter, 31 AD3d1056, 1058 [2006], lv denied 7 NY3d 901 [2006]).
We are also of the view that County Court did not abuse its discretion in denying defendant'srequest for new counsel. Initially, we note that the court did not, as defendant alleges, summarilydeny his request for new counsel prior to conducting any inquiry into his complaints regardingthe representation he had been receiving. After defendant informed the court that counsel wasnot communicating with him, the court conducted an inquiry and found that there was simply nobasis for concluding that the representation that defendant had received was inadequate or thatnew counsel should be assigned. At that point, defendant announced that he would act as his owncounsel. The court, after properly advising defendant of the perils inherent in self-representation,determined that he had made an informed choice and was entitled to act as his own counsel. Atthe same time, the court directed that assigned counsel remain available to advise defendant andprovide him with any assistance he might need during the course of his prosecution. When thecourt refused defendant's request for an adjournment at the pretrial hearings, defendant changedhis mind about proceeding without counsel and, after a Public Defender was reassigned torepresent him, a different attorney from that office assumed responsibility for defendant'srepresentation. On these facts, County Court, in our view, gave appropriate consideration todefendant's complaints (see People vManley, 70 AD3d 1125, 1125-1126 [2010]; People v Davenport, 58 AD3d 892,895 [2009], lv denied 12 NY3d 782 [2009]) and did not abuse its discretion in refusingto assign him new counsel (see People v Sides, 75 NY2d 822, 824 [1990]; People v Brown, 62 AD3d 1089,1092 [2009], lv denied 13 NY3d 742 [2009]; People v Breedlove, 61 AD3d 1120, 1121-1122 [2009], lvdenied 12 NY3d 913 [2009]).
Finally, defendant argues that his sentence was legally improper as well as harsh andexcessive. Specifically, he claims that all three sales for which he stands convicted were part ofthe same criminal transaction and that all the sentences imposed for these convictions had to beserved concurrently. We disagree. The two sales for which County Court imposed eight-yearconcurrent prison sentences occurred on the same day within a relatively short time period and,as such, can be said to have been part of the same criminal transaction. However, these two saleswere not so "closely related and connected in point of time and circumstance" to the third salethat took place two days later "as to constitute a single criminal incident" or "a single criminalventure" (CPL 40.10; see Penal Law § 70.25 [1]). As such, the third salerepresented a separate criminal transaction and a consecutive prison sentence could properly beimposed for this conviction (see Peoplev Perry, 70 AD3d 1063, 1065 [2010]). In addition, given defendant's prior criminalhistory, we see no abuse of discretion or extraordinary circumstances that would warrant amodification of the sentence (see Peoplev Burroughs, 64 AD3d 894, 899 [2009], lv [*4]denied 13 NY3d 794 [2009]; People v Litchfield, 63 AD3d1445 [2009]; People v Douglas, 57 AD3d at 1106).[FN2]
Defendant's remaining contentions have been reviewed and found to be lacking in merit.
Peters, J.P., Malone Jr., McCarthy and Garry, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: Counts one through fourinvolved the two sales that took place within one-half hour of each other on January 22, 2008and counts five and six involved the sale that occurred on January 24, 2008.
Footnote 2: Defendant was also sentencedto one year on each conviction of criminal possession of a controlled substance in the seventhdegree (counts two, four and six), with each to run concurrently with his other sentences(see Penal Law § 70.70 [1]).