| People v Williamson |
| 2010 NY Slip Op 07624 [77 AD3d 1183] |
| October 28, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ShannonWilliamson, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Peters, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered April 1, 2009, upon a verdict convicting defendant of the crime of criminal sale of acontrolled substance in the third degree.
Following a February 2007 controlled buy of cocaine from defendant in the City of Albany,defendant was indicted and charged in October 2008 with one count of criminal sale of acontrolled substance in the third degree. After a jury trial, he was convicted as charged andsentenced to a prison term of five years followed by two years of postrelease supervision.Defendant appeals, and we affirm.
We are unpersuaded by defendant's claim that the verdict was contrary to the weight of theevidence. The trial evidence established that, on the day in question, a confidential informant(hereinafter CI) met with police detective Scott Gavigan to arrange a buy from defendant and wasthen searched, fitted with a wire and provided with $100 in marked bills to use in the transaction.After making a call to defendant for the purpose of arranging the buy, the CI was dropped offnear the rendezvous point by Gavigan and investigator Douglas Vogel. The CI testified that, afterdefendant arrived and they began walking down the sidewalk, she gave defendant the buy moneyin exchange for cocaine. Although Gavigan and Vogel were unable to observe the sale [*2]from their vehicle, investigator Eugene Duda, who was monitoringthe transaction from a different area, observed the CI exchange money for an object in a plasticbag. Following the transaction, the CI returned to the police vehicle, turned over the cocaine andwas searched again. The substance acquired by the CI tested positive for cocaine. Whiledefendant questions the credibility of the People's witnesses, we defer to the jury's resolution ofthose credibility issues (see People vFlagg, 30 AD3d 889, 892 [2006], lv denied 7 NY3d 848 [2006]; People v Coleman, 2 AD3d 1045,1046-1047 [2003]). Viewing all of the evidence in a neutral light, we find that the verdict isamply supported by the weight of the evidence (see People v Bleakley, 69 NY2d 490,495 [1987]; People v Morris, 25AD3d 915, 918 [2006], lv denied 6 NY3d 851 [2006]).
Similarly unavailing is defendant's claim that County Court deprived him of hisconstitutional right to confrontation by curtailing cross-examination of Duda regarding histestimony at a prior, unrelated trial against defendant. Defense counsel's offer of proof revealedthat his proposed line of questioning was designed to attack Duda's general credibility, ratherthan an attempt to establish a specific motive to fabricate. "Because this line of questioning wascollateral, it was subject to limitation by the trial court in the exercise of its discretion"(People v Esposito, 225 AD2d 928, 931 [1996] [citations omitted], lv denied 88NY2d 935 [1996]; see People v Hudy, 73 NY2d 40, 56 [1988]; People v Barnett,278 AD2d 660, 662 [2000], lv denied 96 NY2d 825 [2001]). County Court, having foundthat the proposed questioning would confuse and mislead the jury, did not abuse its discretion inprecluding such an inquiry (see People vCorby, 6 NY3d 231, 234 [2005]).
Defendant also contends that he was deprived of the effective assistance of counsel. To theextent that defendant's argument is premised on counsel's failure to make a motion to dismiss theindictment based upon preindictment delay, we find that it is more properly the subject of a CPL440.10 motion.[FN*]Otherwise, the record reflects that counsel gave cogent opening and closing arguments, madeappropriate objections throughout the trial, vigorously cross-examined the People's witnesses andpresented a reasonable, albeit unsuccessful, defense. Under the totality of the circumstances, andnotwithstanding defendant's other claimed deficiency on the part of counsel, we are satisfied thatdefendant received meaningful representation (see People v [*3]Benevento, 91 NY2d 708, 712 [1998]; People v Moyer, 75 AD3d 1004,1007 [2010]).
Nor was defendant deprived of a fair trial due to prosecutorial misconduct during summation.We disagree that the prosecutor improperly vouched for the credibility of the police witnesses,and find that the complained of comment by the prosecutor was fair commentary in response todefense counsel's attack on their veracity during summation (see People v Galloway, 54NY2d 396, 399 [1981]; People v Proper, 177 AD2d 863, 864 [1991], lv denied79 NY2d 922 [1992]). The remaining challenged remarks either constituted permissiblerhetorical comment (see People v Miller, 272 AD2d 925, 925 [2000], lv denied95 NY2d 906 [2000]), were a fair comment on the evidence or were in response to the theory ofthe defense and its summation (seePeople v Wagner, 72 AD3d 1196, 1198 [2010], lv denied 15 NY3d 779 [2010];People v Porlier, 55 AD3d1059, 1062 [2008]; People vWeber, 40 AD3d 1267, 1268 [2007], lv denied 9 NY3d 927 [2007]).
Finally, we reject defendant's contention that the sentence imposed was harsh and excessive.Defendant has failed to demonstrate an abuse of County Court's discretion or the existence ofextraordinary circumstances warranting modification of his sentence (see People v Lawal, 73 AD3d1287, 1290 [2010]; People vHicks, 55 AD3d 1138, 1142 [2008], lv denied 12 NY3d 758 [2009]).
Cardona, P.J., Rose, Malone Jr. and Stein, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: To be sure, it is well establishedthat where there has been an extended preindictment delay, the burden is on the People toestablish good cause (see People vDecker, 13 NY3d 12, 14 [2009]; People v Lesiuk, 81 NY2d 485, 490 [1993]).Here, there can be little dispute that the nearly 20-month delay between the commission of theinstant crime and the filing of the indictment was protracted (see e.g. People v Morris, 25AD3d at 917 [21-month delay between sale to confidential informant and indictment found to beprotracted]; People v Townsend, 270 AD2d 720, 720-721 [2000] [15-month delaybetween sale and indictment found to be lengthy]). Inasmuch as the record presently before us isbereft of any reason for the nearly 20-month delay, defendant's assertion of ineffectiveness in thisregard cannot be determined on the record before us (see People v Garay, 136 AD2d 652,653 [1988], lv denied 71 NY2d 1027 [1988]; see generally People v Love, 57NY2d 998, 999-1000 [1982]).