| People v Rolle |
| 2010 NY Slip Op 03496 [72 AD3d 1393] |
| April 29, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v BradleyRolle, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Egan Jr., J. Appeals (1) from a judgment of the County Court of Albany County (Breslin, J.),rendered November 21, 2006, 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 and criminal possession of a controlled substance in the fifth degree, and (2) bypermission, from an order of said court, entered January 22, 2008, which denied defendant'smotion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
Following a jury trial, defendant was convicted as charged of criminal sale of a controlledsubstance in the third degree based upon evidence that he possessed and sold cocaine to aconfidential informant (hereinafter CI) in the City of Albany on November 21, 2005, and ofcriminal possession of a controlled substance in the third and fifth degrees based on evidencethat he possessed cocaine with the intent to sell it on December 13, 2005 in Albany. Upon hisconviction, defendant was sentenced to an aggregate prison term of 12 years, with six years ofpostrelease supervision. Defendant appeals.[*2]
The testimony at trial established that in November 2005,the CI advised Jeffrey Connery, a detective with the police department's Community ResponseUnit (hereinafter CRU), that he could buy drugs from unidentified individuals at a two-familyresidence located at 107 Lark Street in Albany. On November 21, 2005, CRU detectives and theCI traveled to the Lark Street neighborhood in an unmarked minivan, and the CI, equipped witha wire (a sound transmitting device) and $40 in buy money, was observed by detectives meetinga black male wearing a gray sweat suit in front of 107 Lark Street. Both men entered thebuilding, and detectives overheard a drug transaction via the wire. After exiting the building, theCI returned to the minivan and turned over a substance that forensic testing later revealed to be.33 milligrams of cocaine. While the CI was acquainted with the person from whom hepurchased the cocaine, he did not know his name, but described him as dark-skinned, wearing agray sweat suit and a black do-rag. The individual was similarly described by Connery andDetectives Kenneth Koonz and Dennis Guiry, who were also monitoring the controlled buy.
Back at the police station, Connery gave a description of the unidentified subject toDetective Sergeant Jeffrey Roberts, also an officer assigned to the CRU who was familiar withthe Lark Street neighborhood. That evening, Roberts drove by the Lark Street address andobserved an individual he knew from previous encounters to be defendant. Roberts contactedConnery and requested that Koonz drive to the vicinity of the Lark Street address to see if herecognized anyone from the controlled buy. Thereafter, Koonz arrived in the vicinity of 107 LarkStreet and confirmed with Roberts that the individual who entered that address with the CIearlier that day was the same individual Roberts knew to be defendant. The CI thereafterpositively identified defendant from a photo array as the individual who participated in thecontrolled buy.
On December 13, 2005, a search warrant was obtained and executed at 107 Lark Street.Although defendant was named as one of the targets of the warrant, he was not at the premises atthe time it was executed, although several other persons were arrested. As the officers, includingRoberts, were leaving the scene, defendant walked in front of their unmarked police vehicle,crossing the street. Roberts and other officers followed defendant into a nearby bar and arrestedhim. A pat-down search of defendant uncovered what later forensic testing revealed to be 2,400milligrams of cocaine hidden inside a cigarette pack.
Defendant first argues that he was deprived of his statutory right to testify at the grand juryproceedings (see CPL 190.50 [5] [a]) and that he was provided with insufficient notice ofpresentment (see CPL 190.50 [5] [b]). An objection by a defendant to a claimed violationof his or her rights under CPL 190.50 must be made by a motion to dismiss the indictment nolater than five days after arraignment on the indictment, or the defendant's challenges will bedeemed waived (see CPL 190.50 [5] [c]; People v Weis, 56 AD3d 900, 901-902 [2008], lv denied12 NY3d 763 [2009]; People v Bass, 255 AD2d 689, 692-693 [1998], lv denied93 NY2d 966 [1999]; People v Brown, 227 AD2d 691, 692 [1996], lv denied 88NY2d 980 [1996]). Here, defendant was arraigned on the superseding indictment on April 20,2006, and it is conceded that no such motion was ever made. Accordingly, defendant'schallenges regarding the notice of presentment to and his right to testify before the grand jury aredeemed waived.
We are not persuaded by defendant's contention that County Court committed reversibleerror in permitting defendant to represent himself at the Mapp/Dunaway hearing. CountyCourt granted defendant's unequivocal request to proceed pro se based upon his disagreementwith counsel's questioning during cross-examination, and only after an appropriate inquiry wasconducted by the court (see People v McIntyre, 36 NY2d 10, 17 [1974]; comparePeople v [*3]Arroyo, 98 NY2d 101, 103-104 [2002]; People v Tafari, 68 AD3d 1540,1541 [2009]). Defendant's waiver of his right to counsel was made competently, intelligently andvoluntarily and, "[u]pon a review of the record, it cannot be said that defendant's behavior wasaimed at purposefully delaying the proceedings or preventing an orderly trial but, rather, therecord reflects that he engaged in efforts to defend himself for legitimate reasons"(People vTafari, 68 AD3d at 1541).
Furthermore, we find that County Court properly concluded, after theMapp/Dunaway hearing, that probable cause existed for defendant's arrest based on theinformation received from the CI, the observations of the detectives monitoring the controlledbuy, together with the CI's positive identification of defendant from a photo array conductedprior to the arrest (see generally Peoplev Shulman, 6 NY3d 1, 25-26 [2005], cert denied 547 US 1043 [2006]; People v Tillman, 57 AD3d 1021,1022-1023 [2008]). Thus, County Court properly denied defendant's motion to suppress thedrugs found in his possession. Defendant's challenge regarding the failure of the court to conductan Aguilar/Spinelli hearing was not preserved for appellate review. In any event, we findthat the CI's reliability was amply established based on the circumstances surrounding thecontrolled buy and the CI's subsequent identification of defendant (see People v Glover, 23 AD3d688, 688-689 [2005], lv denied 6 NY3d 776 [2006]).
Defendant next contends that gaps existed in the chain of custody of the cocaine evidence.Such gaps may be excused where, as here, the testimony of the detective assigned to transportthe evidence and the testimony of the forensic scientists assigned to test the evidence, togetherwith the lack of any evidence of tampering, provide reasonable assurances of the identity andunchanged condition of the evidence (see People v Hawkins, 11 NY3d 484, 494 [2008]; People v Welch, 71 AD3d 1329,1331 [2010]). In addition, gaps in the chain of custody identified by defendant relate to theweight of the evidence, not its admissibility (see People v Hawkins, 11 NY3d at 494;People v Welch, 71 AD3d at 1331; People v Bellamy, 34 AD3d 937, 939 [2006], lv denied 8NY3d 843 [2007]).
We turn next to defendant's contention that his conviction for criminal sale of a controlledsubstance in the third degree was not supported by legally sufficient evidence. Defendant furtherargues that there is insufficient proof identifying him as the person who sold the cocaine onNovember 21, 2005 and, as a result, all of his convictions are against the weight of the evidence.
"When considering a challenge to the legal sufficiency of the evidence, we view theevidence in the light most favorable to the People and will not disturb the verdict if the evidencedemonstrates a valid line of reasoning and permissible inferences that could lead a rationalperson to the conclusion reached by the jury" (People v Maricevic, 52 AD3d 1043, 1044 [2008], lvdenied 11 NY3d 790 [2008]; seePeople v Hampton, 64 AD3d 872, 874 [2009], lv denied 13 NY3d 796 [2009]).Criminal sale of a controlled substance in the third degree requires proof that defendantknowingly and unlawfully sold a narcotic drug (see Penal Law § 220.39 [1];§ 220.00 [7]). Based on the testimony of the police detectives and the CI, all of whomdescribed their roles in and observations of the controlled buy that led to defendant's arrest, wefind that, viewed in the light most favorable to the People, the proof was legally sufficient tosustain the verdict. Furthermore, upon our independent review of the record, and in evaluatingthe evidence in a neutral light and according appropriate deference to the jury's assessment ofwitness credibility, we find that the verdict on all counts is not against the weight of the evidence(see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Burroughs, 64 AD3d 894, 897 [2009], lv denied[*4]13 NY3d 794 [2009]; People v Hampton, 64 AD3d at874; People v Chatham, 55 AD3d1045, 1046 [2008]).
Nor are we persuaded by defendant's claims that he was denied the effective assistance ofcounsel (see People v McDaniel, 13NY3d 751, 752 [2009]; People v Benevento, 91 NY2d 708, 713-714 [1998];People v Baldi, 54 NY2d 137, 147 [1981]; People v Blanchard, 63 AD3d 1291, 1292 [2009], lvdenied 13 NY3d 794 [2009]). Defendant's failures to appear before the grand jury and totimely file a motion to dismiss the superseding indictment are his own, not his attorney's.Defendant's remaining assertions involve trial strategy, which will not be second-guessed inhindsight (see People v Benevento, 91 NY2d at 712; People v Turner, 37 AD3d 874, 876 [2007], lv denied 8NY3d 991 [2007]).
Based on the nature of the offenses committed and defendant's prior criminal history, whichincluded a number of felony and misdemeanor convictions, we find that defendant's sentencewas not harsh and excessive (see Peoplev Fairley, 63 AD3d 1288, 1290-1291 [2009], lv denied 13 NY3d 743 [2009]; People v Minor, 45 AD3d 885,886 [2007], lv denied 10 NY3d 768 [2008]). We also conclude that defendant's CPL440.10 motion was properly denied on the ground that it raised issues that could be raised bydefendant on direct appeal (see People v Barber, 280 AD2d 691, 692 [2001], lvdenied 96 NY2d 825 [2001]).
Finally, we are unpersuaded by defendant's conclusory assertion, submitted in his pro sesupplemental brief, that the superceding indictment was evidence of prosecutorial misconduct orvindictiveness (see CPL 200.80; People v Potter, 50 AD2d 410, 412-413[1976]). Defendant's remaining contentions, including those raised in his pro se supplementalbrief, have been reviewed and we find that they are without merit.
Cardona, P.J., Peters, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment andorder are affirmed.