| People v Sudler |
| 2010 NY Slip Op 06182 [75 AD3d 901] |
| July 22, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Ijal Sudler,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered February 15, 2008, upon a verdict convicting defendant of the crimes of criminalpossession of a controlled substance in the third degree (three counts), criminal possession of acontrolled substance in the fourth degree and criminally using drug paraphernalia in the seconddegree.
In November 2006, after receiving tips from two informants that defendant was in the areawith drugs, the City of Albany Police Department carried out surveillance of defendant's vehicleand an apartment in the City of Albany out of which he was believed to be working. Police alsoconducted a "rip operation" in which they listened while an informant used a cellular telephoneto arrange a crack cocaine purchase from defendant. Police stopped the vehicle while the drugswere allegedly being delivered and arrested the driver and sole occupant, Boshaun Gregory, whowas found with narcotics on his person. Defendant was arrested when he arrived at the scene.Narcotics and drug paraphernalia were found in the apartment during a search conductedpursuant to a warrant.
Defendant was indicted on three counts of criminal possession of a controlled substance inthe third degree and one count each of criminal possession of a controlled substance in the fourthdegree, criminal possession of marihuana, and criminally using drug paraphernalia in the seconddegree. After his motion to suppress physical evidence was denied, defendant fled. He [*2]was tried in absentia by a jury and, at the close of all proof, thePeople withdrew the charge of criminal possession of marihuana. Defendant was convicted onthe remaining counts. He appeared for sentencing and was sentenced as a predicate violentfelony offender to an aggregate prison sentence of 30 years, to be followed by three years ofpostrelease supervision. Defendant appeals.
County Court properly denied defendant's motion to suppress physical evidence. His arrestdid not lack probable cause, which " 'exists when an officer has knowledge of facts andcircumstances sufficient to support a reasonable belief that an offense has been or is beingcommitted' " (People v Bell, 5AD3d 858, 859 [2004], quoting People v Maldonado, 86 NY2d 631, 635 [1995][internal quotation marks and citation omitted]). Probable cause for an arrest may be based, inwhole or in part, on hearsay information satisfying the two-part Aguilar-Spinelli test,which requires "a showing that the informant is reliable and has a basis of knowledge for theinformation imparted" (People v Bell, 5 AD3d at 859; see People v Johnson, 66NY2d 398, 402 [1985]). An arresting officer may rely on information obtained from a fellowofficer so long as "the police as a whole were in possession of information sufficient to constituteprobable cause to make the arrest" (People v Ramirez-Portoreal, 88 NY2d 99, 113[1996] [internal quotation marks and citation omitted]; see People v Bell, 5 AD3d at859).
At the suppression hearing, Detective Ricky Vincent testified that he was told that defendantwas in the Albany area with drugs by an anonymous informant who had previously provided afellow officer with information about defendant's alleged drug dealings, including his streetname ("G"), his cellular telephone number, and the make, model and license plate number of hisvehicle. Later that same day, another informant (hereinafter the second informant) told Vincentthat "G" was providing her with drugs, was working out of a certain Albany apartment, andsometimes used a person named Gregory to make deals. The second informant also providedVincent with vehicle and telephone information for defendant corresponding with theinformation previously provided by the anonymous informant.
Vincent testified that he sent several detectives to monitor the Albany apartment, where avehicle matching the informants' description was spotted. Police simultaneously mounted the ripoperation, in the course of which Vincent listened as the second informant called defendant'spurported cellular telephone number and arranged to have Gregory deliver crack cocaine to herhome after completing an errand. After this call was placed, officers watched defendant's vehiclebeing driven away from the apartment. Gregory emerged briefly to carry out an errand and thendrove the vehicle onto the second informant's street, where police officers pulled it over andarrested him, recovering drugs and drug paraphernalia from his person. At the instruction ofpolice, Gregory and the second informant each telephoned defendant, and Vincent overhearddefendant state that he was waiting for a taxi to bring him to the vehicle. Meanwhile, officerswatching the apartment building saw defendant outside, speaking on the telephone and entering ataxi. He arrived at the arrest scene in the same taxi, identified himself, and was arrested.
These events were sufficient to establish probable cause for defendant's arrest. The secondinformant's basis of knowledge was established by her prior dealings with defendant and by herpersonal involvement in the rip operation (see People v Walker, 27 AD3d 899, 900 [2006], lv denied7 NY3d 764 [2006]). The reliability of the information provided was established by itscorrespondence with the information previously obtained from the other informant and also bythe direct observations of the police officers engaged in the surveillance and rip operation(see People v DiFalco, 80 NY2d 693, 696-697 [1993]; People v Smalls, 271[*3]AD2d 754, 754-755 [2000], lv denied 95 NY2d 804[2000]). Finally, the arresting officer had probable cause for defendant's warrantless arrestconsisting of the information provided to him by radio from the other officers who were participating in the surveillance and rip operation (see People v Bell, 5 AD3d at859).
County Court properly determined that defendant did not show a legitimate expectation ofprivacy in the Albany apartment and therefore lacked standing to contest the application for asearch warrant (see People v Rodriguez, 69 NY2d 159, 162 [1987]; People vHoward, 213 AD2d 903, 904 [1995], lv denied 85 NY2d 974 [1995]). Whendefendant was arrested, he told police that he resided in Brooklyn, at the same street addresswhere his vehicle was registered. The lessee of the Albany apartment told police that defendanthad a key, stayed there from time to time, and kept clothing there, but keys that police took fromdefendant did not unlock the apartment door. Thus, defendant did not meet his burden toestablish that he had taken precautions to maintain the Albany apartment's privacy, that he hadthe right to exclude others from the premises, or otherwise had a reasonable expectation ofprivacy there (see People v Rodriguez, 69 NY2d at 162-163). In any event, the searchwarrant application was supported by probable cause (see People v Mabeus, 63 AD3d 1447, 1450 [2009]). Finally, inlight of the officers' direct observations and the information obtained via the phone conversationswith defendant, no Darden hearing was required (see People v Farrow, 98 NY2d629, 630-631 [2002]).
Defendant's claim that the witness testimony was incredible as a matter of law, therebyrendering the evidence legally insufficient to support his convictions, is unpreserved forappellate review. His general motion for a trial order of dismissal at the close of proof(see CPL 290.10) was ineffective to preserve this claim because it was not "specificallydirected at the alleged error" (People v Gray, 86 NY2d 10, 19 [1995] [internal quotationmarks omitted]). Moreover, defendant's posttrial motion to set aside the verdict on theinsufficiency ground was properly denied. Such a motion may be granted only for issues of lawthat "would require a reversal or modification of the judgment as a matter of law by an appellatecourt" (CPL 330.30 [1]), and "[u]nder this statutory standard, an insufficiency argument may notbe addressed unless it has been properly preserved for review during the trial" (People vHines, 97 NY2d 56, 61 [2001]; seePeople v Thomas, 38 AD3d 1134, 1136 [2007], lv denied 9 NY3d 852 [2007]).
Next, defendant asserts that his motion pursuant to CPL 330.30 should have been granted onthe ground that testimony regarding uncharged crimes was improperly admitted. In this regard,Vincent testified at trial that he began investigating defendant after arresting the secondinformant and learning that she had purchased crack cocaine from him. Defendant contends thathis motion for a mistrial based on this testimony should have been granted since this unchargedcrime was not part of the People's pretrial Molineaux application. We agree with CountyCourt that the testimony was "inextricably interwoven with the charged crimes" (People v Tarver, 2 AD3d 968, 969[2003]). The evidence in question demonstrated how defendant became the target of theinvestigation and provided important background information regarding the second informant'sprior transactions with him and role in the investigation; it was admitted for these purposesrather than to prove defendant's criminal propensities. Moreover, the evidence was probative ofintent to sell, an element of the charged crimes that had been placed in issue by defendant. Thus,the evidence was more probative than prejudicial (see People v Maye, 43 AD3d 556, 558 [2007], mod 12NY3d 731 [2009]; People v Reid,12 AD3d 719, 720-721 [2004], lv denied 4 NY3d 767 [2005]). Further, the courtprovided appropriate limiting instructions after Vincent's testimony and other testimony thatsuggested prior uncharged crimes (see People v Maye, 43 AD3d at 558; People v Buckery, 20 AD3d 821,823-824 [2005], lv denied 5 NY3d 826 [2005]).
Defendant failed to preserve his claim that he was deprived of a fair trial by allegedimproprieties in Vincent's testimony, the jury instructions, and the People's summation, havingfailed to object on these grounds during the trial (see CPL 470.05; People vGray, 86 NY2d at 19; People vAdamek, 69 AD3d 979, 979-980 [2010], lv denied 14 NY3d 797 [2010]). Nordo we find that counsel's failure to object on these three grounds constituted ineffectiveassistance, depriving defendant of "meaningful representation" (People v Baldi, 54NY2d 137, 147 [1981]; see e.g. Peoplev Gentry, 73 AD3d 1383, 1384 [2010]).
First, Vincent's testimony that plastic bags found in the apartment were of a type typicallyused to package drugs for sale and that the circumstances indicated that the drugs found bypolice were packaged with the intent to sell were matters not within the knowledge andexperience of the average juror. In these circumstances, qualified police officers may testify asexperts (see People v Hicks, 2NY3d 750, 751 [2004]; People v Davis, 235 AD2d 941, 943 [1997], lvdenied 89 NY2d 1010 [1997]), no explicit declaration that Vincent was testifying as anexpert was required (see People vLamont, 21 AD3d 1129, 1132 [2005], lv denied 6 NY3d 835 [2006]), and histestimony as to his education, training, and experience in narcotics cases provided a sufficientfoundation (see id.). Next, although County Court's instruction that the purpose ofsummations was for the attorneys to suggest certain inferences and conclusions which "in theiropinion" could properly be drawn from the evidence suggests error when viewed in isolation(see e.g. People v Russell, 307 AD2d 385, 386 [2003]), it is readily apparent when readin context that the court did no more than instruct that each side would be presenting its theory ofthe case (see People v Drake, 7NY3d 28, 33-34 [2006]). We find that, read as a whole, the charge "fairly instructed the juryon the correct principles of law to be applied to the case" (People v Ladd, 89 NY2d 893,896 [1996]). Finally, the prosecutor's use of the word "I" during summation "was merely stylisticand not an impermissible expression of personal opinion" (People v Lamont, 21 AD3d at1131-1132). The prosecutor's further comments were neither so egregious nor pervasive as todeprive defendant of a fair trial (seePeople v Guay, 72 AD3d 1201, 1203-1204 [2010]; People v Hunt, 39 AD3d 961, 963 [2007], lv denied 9NY3d 845 [2007]). Thus, defendant did not establish that his attorney, who made appropriatepretrial motions, pursued a cogent theory of the case, engaged in vigorous cross-examination,and otherwise provided zealous advocacy, failed to provide him with meaningful representation(see People v Madison, 31 AD3d974, 975 [2006], lv denied 7 NY3d 868 [2006]).
Finally, we disagree withdefendant that his sentence is harsh and excessive and that no consecutive terms should havebeen imposed. County Court appropriately took into consideration defendant's disregard for andobstruction of the judicial process as demonstrated by his flight from prosecution, while notingthat for purposes of sentencing, it would not take into consideration certain actions he allegedlytook as a fugitive. In view of the separate and distinct crimes of which defendant was convicted,his flight, prior felony, and complete failure to express remorse or accept responsibility for hisactions, we find no abuse of discretion and no extraordinary circumstances that warrantreduction of the sentence (see People vMcDonald, 43 AD3d 1207, 1207 [2007], lv denied 10 NY3d 867 [2008]; People v Davis, 4 AD3d 567, 568[2004], lv denied 2 NY3d 798 [2004]).
Rose, J.P., Lahtinen, Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.