| People v Wilson |
| 2010 NY Slip Op 07826 [78 AD3d 1213] |
| November 4, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Robert Wilson,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered January 16,2009 in Albany County, upon a verdict convicting defendant of the crime of criminal sale of a controlledsubstance in the third degree.
Following a jury trial, defendant was convicted as charged of criminal sale of a controlledsubstance in the third degree based upon evidence that he sold cocaine to a confidential informant(hereinafter CI) in the City of Albany on March 19, 2008. Upon his conviction, defendant wassentenced as a second felony offender to a prison term of eight years with three years of postreleasesupervision. Defendant now appeals.
The testimony at trial established that in March 2008, Scott Gavigan, a detective with the AlbanyPolice Department, planned a controlled buy operation to be conducted at the CI's residence in theCity of Albany. On the morning of March 19, 2008, the CI was brought to the police station andstrip-searched to ensure she possessed no contraband prior to the operation. Gavigan, another officerand the CI then traveled to the general area of Lexington Avenue in an unmarked van. Gavigan thenwalked to the CI's address and checked the porch area for contraband, with negative results. The CIwas then equipped with a concealed sound transmitting device and $40 in prerecorded buy money. TheCI then used her cell phone to call [*2]defendant with whom she wasacquainted. Defendant answered, the CI told him she needed a "40," and defendant replied that hewould be right there. The CI then stepped out of the van and started to walk to her address, but had toreturn to the van when the transmitter began to heat up and burn her. In the meantime, other officersobserved defendant arrive at the front of the CI's residence. The CI walked back to that location andmet defendant on the porch. The CI and defendant stepped into the porch vestibule, and defendantgave the CI three small pieces of an off-white, rock-like substance in return for the $40. Defendant andthe CI then stepped off the porch and walked up the street together a short way before defendantdeparted on a bicycle. Defendant was then stopped a short distance away by a uniformed officer underthe pretense of investigating a report of a stolen bicycle, his identity was confirmed, and he wasreleased. The CI returned to the officers in the van and turned over the three substances that forensictesting later revealed to be cocaine. In order to protect the identity of the CI, defendant was notarrested that day, but instead charged by sealed indictment several weeks later.
Supreme Court did not err in denying defendant's motion for a mistrial regarding an answer givenby a potential juror during jury selection. "[T]he decision to grant or deny a motion for a mistrial iswithin the trial court's discretion" (People vNewkirk, 75 AD3d 853, 856 [2010] [internal quotation marks omitted]; see People v Green, 31 AD3d 1048,1049 [2006], lv denied 7 NY3d 902 [2006]; accord People v Miller, 239 AD2d 787,787 [1997], affd 91 NY2d 372 [1998]). During voir dire, in response to Supreme Court'sinquiry of the jury pool whether any of the jurors knew or were acquainted with defendant, defendant'slawyer or the prosecuting attorney, one of the prospective jurors—a retired prisonwarden—answered that the "defendant seems vaguely familiar. I don't know if I ran across himin prison or . . . ." Supreme Court immediately interrupted the juror, who was laterexcused, and the court subsequently denied the motion for a mistrial based on this comment. The courtthen issued curative instructions upon the continuation of voir dire that jury members were to disregard"what jurors say during jury selection [as it] certainly does not constitute evidence" and further inquired,with negative results, if there were any potential jurors that would be unable to follow that instruction.We find that Supreme Court made an appropriate inquiry of the remaining jurors, and its subsequentcurative instructions "sufficiently alleviated any potential prejudice to defendant and ensured his right toan impartial jury" (People v Green, 31 AD3d at 1049; see CPL 280.10 [1];People v Chavys, 263 AD2d 964, 964 [1999], lv denied 94 NY2d 821 [1999]).
Defendant's contention that he was prejudiced by Supreme Court's response to a sitting juror'swritten note was not preserved for appellate review as he neither objected nor requested a mistrial withrespect to this issue (see People v Heide, 84 NY2d 943, 944 [1994]; People v Tomlinson, 53 AD3d 798,799 [2008], lv denied 11 NY3d 835 [2008]), and we decline to exercise our interest of justicejurisdiction with respect thereto (see CPL 470.15 [6] [a]).
Next, we are unpersuaded that Supreme Court abused its discretion in reaching itsSandoval ruling. " 'The determination as to which prior convictions . . . can beinquired about and the extent of such inquiry rests primarily within the discretion of the trial court' " (People v Caston, 60 AD3d 1147,1148 [2009], quoting People v Adams,39 AD3d 1081, 1082 [2007], lv denied 9 NY3d 872 [2007]). Neither remoteness intime nor similarity to the instant offense automatically requires preclusion of a prior conviction (seePeople v Walker, 83 NY2d 455, 459 [1994]; People v Vasquez, 71 AD3d 1179, 1180 [2010], lv denied 14NY3d 894 [2010]). Here, the People requested permission to cross-examine defendant about sixconvictions. After careful consideration of each, Supreme Court ruled that the probative value of two ofthose convictions on the issue of defendant's credibility outweighed the potential prejudice to defendant,and [*3]further limited inquiry about one—a 1998 conviction forcriminal possession of a controlled substance in the fifth degree—to whether defendant wasconvicted of a felony, without identifying the specific conviction. While the other conviction—forcriminal possession of a weapon in the third degree—occurred more than 10 years earlier, thereis no bright-line rule of exclusion based upon age of conviction, and older convictions have beenpermitted where, as here, a defendant was incarcerated for an extensive period of time since theconviction (see People v Wright, 38AD3d 1004, 1005-1006 [2007], lv denied 9 NY3d 853 [2007]; People vTarver, 292 AD2d 110, 117 [2002], lv denied 98 NY2d 702 [2002]; People vTeen, 200 AD2d 785, 786 [1994], lv denied 83 NY2d 859 [1994]). Accordingly, wefind that Supreme Court "properly considered defendant's history of criminal acts and weighed theirprobative value with the risk of unfair prejudice" (People v Vasquez, 71 AD3d at 1180;see People v Hayes, 97 NY2d 203, 207-208 [2002]), such that it cannot be concluded thatthe court abused its discretion (see People vJones, 70 AD3d 1253, 1254-1255 [2010]).
In addressing defendant's argument that the verdict was against the weight of the evidence, such ananalysis is "a two-step approach that requires courts to first determine whether, based on all thecredible evidence, a different finding would not have been unreasonable, and, if that step is satisfied,then the appellate court must, like the trier of fact below, weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may be drawn from thetestimony" (People v Sanchez, 75 AD3d911, 913 [2010] [internal quotation marks and citations omitted]; see People v Romero, 7 NY3d 633,643 [2006]; People v Hebert, 68 AD3d1530, 1531 [2009], lv denied 14 NY3d 841 [2010]). " 'Essentially, the court sits as athirteenth juror and decides which facts were proven at trial' and, in light of those facts, whether theelements of the crimes charged have been proven beyond a reasonable doubt" (People vSanchez, 75 AD3d at 913, quoting People v Danielson, 9 NY3d 342, 348-349 [2007]). With respect to thecharge of criminal sale of a controlled substance in the third degree, the People were obligated to provethat defendant "knowingly and unlawfully [sold] . . . a narcotic drug" (Penal Law §220.39 [1]). Based on the testimony of the police officers, the CI and the forensic scientist, all of whomdescribed their roles in and observations of the controlled buy that led to defendant's arrest, we find, inevaluating the evidence in a neutral light and according appropriate deference to the jury's assessmentof witness credibility, that the verdict is not against the weight of the evidence (see People vBleakley, 69 NY2d 490, 495 [1987]; People v Burroughs, 64 AD3d 894, 897 [2009], lv denied 13NY3d 794 [2009]; People v Chatham,55 AD3d 1045, 1046 [2008], lv denied 14 NY3d 839 [2010]).
Nor are we persuaded by defendant's claim that he was denied the effective assistance of counsel(see People v McDaniel, 13 NY3d751, 752 [2009]; People v Benevento, 91 NY2d 708, 713 [1998]; People v Battease, 74 AD3d 1571,1575 [2010], lv denied 15 NY3d 849 [2010]). The record reflects that counsel appropriatelyconducted jury voir dire, made articulate opening and closing statements, effectively cross-examinedwitnesses, including the CI, successfully moved to have the majority of the audiotape ruled inadmissible,and made appropriate objections and motions, such that defendant was afforded meaningfulrepresentation (see generally People v McDaniel, 13 NY3d at 752; People vBenevento, 91 NY2d at 713).
Next, we find that the sentence imposed was not harsh and excessive, notwithstanding that thesentence imposed after trial was greater than the sentence offered as part of a pretrial plea (see People v Robinson, 72 AD3d1277, 1278 [2010], lv denied 15 NY3d 809 [2010]). Given the nature of the crimecommitted and defendant's criminal history, which includes numerous convictions for drug-relatedcrimes, we discern no extraordinary circumstances or abuse of [*4]discretion warranting a reduction of the sentence (see CPL470.15 [6] [b]; People v Sanchez, 75 AD3d at 914-915; People v Sabin, 73 AD3d 1390, 1391 [2010], lv denied 15NY3d 809 [2010]; People v Fairley, 63AD3d 1288, 1290-1291 [2009], lv denied 13 NY3d 743 [2009]).
Defendant's remaining argument, that the verdict should be set aside in the interest of justice, hasbeen reviewed and found to be without merit.
Spain, J.P., Rose, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment is affirmed.