| People v Young |
| 2011 NY Slip Op 05991 [86 AD3d 796] |
| July 21, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Joseph G.Young, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Broome County (Cawley, J.),rendered July 14, 2008, upon a verdict convicting defendant of the crimes of criminal sale of acontrolled substance in the third degree (two counts) and sale of an imitation controlledsubstance.
Defendant was the target of a narcotics investigation by the Broome County Narcotics DrugTask Force. During the investigation, Michael Clapp, a detective in the Broome County Sheriff'sOffice acting in an undercover capacity, contacted defendant on three separate occasions andmade arrangements to purchase cocaine from him. On two of the three occasions, Clapp did infact purchase cocaine from defendant. On the third occasion, defendant was arrested prior to thecompletion of the transaction. At the time of defendant's arrest, members of the task forcesearched him and the vehicle in which he had arrived. The search of the vehicle yielded a digitalscale, a cellular telephone and some razor blades. Defendant was thereafter indicted on twocounts of criminal sale of a controlled substance in the third degree and one count of sale of animitation controlled substance. County Court denied his motion seeking, among other things, tosuppress the evidence found on his person and in the vehicle. Defendant was ultimatelyconvicted as charged after a jury trial and was sentenced, as a second felony offender, to anaggregate prison term of eight years followed by two years of postrelease supervision. Defendantnow appeals and we affirm.[*2]
We reject defendant's argument that County Court shouldhave suppressed the evidence found in the vehicle on the basis that the warrantless search wasnonconsensual. The suppression hearing testimony of James Hawley, an investigator in the Cityof Binghamton Police Department, established that, upon defendant's arrest, the policeapproached the vehicle in which he had arrived and found Amber Martin, defendant's girlfriend,in the driver's seat. After informing Martin that defendant had been arrested, Hawley asked forand obtained her consent to search the vehicle. Martin testified at the suppression hearing thatshe did not give the police officers permission to search the vehicle. However, she furthertestified that, although defendant had purchased the vehicle, it was registered in her name and shehad purchased the insurance. The hearing testimony, as a whole, was sufficient to demonstratethat the search of the vehicle was conducted with the voluntary consent of Martin (seeSchneckloth v Bustamonte, 412 US 218, 219, 248-249 [1973]; People v Gonzalez,39 NY2d 122, 124 [1976]; People vBoyea, 44 AD3d 1093, 1094-1095 [2007]), who had the requisite degree of authorityand control over the vehicle to provide such consent (see People v Adams, 53 NY2d 1, 8[1981], cert denied 454 US 854 [1981]). At the very least, the police were entitled to "'rely in good faith on the apparent capability of [Martin] to consent to a search' " (People v Dean, 46 AD3d 1229,1231 [2007], lv denied 10 NY3d 763 [2008], quoting People v Adams, 53 NY2dat 9). Any conflicting testimony as to whether Martin gave her consent presented a credibilityissue for County Court to resolve (seePeople v Marshall, 65 AD3d 710, 711 [2009], lv denied 13 NY3d 940 [2010];People v Williams, 25 AD3d927, 928 [2006], lv denied 6 NY3d 840 [2006]). Thus, we find no error in CountyCourt's denial of the motion to suppress.
We are also satisfied that the verdict was based upon legally sufficient evidence and was inaccord with the weight of the evidence. Clapp testified that he called defendant three differenttimes, indicating each time that he had an amount of money with which to purchase cocaine.Defendant then instructed Clapp where to meet him and, in the first two instances, ultimatelygave Clapp substances contained in plastic bags—which later tested positive ascocaine—in exchange for money (see Penal Law § 220.00 [7]; §220.39 [1]; Public Health Law § 3306 [II] [b] [4]). Before the transaction was completed atthe third arranged meeting, defendant was arrested and a white chunky substance in a plasticbag—which did not test positive as any illegal substance—was taken from hisperson (see Public Health Law § 3383 [1] [c]; [2]). Charles Woody Jr., a narcoticsinvestigator with the City of Binghamton Police Department and the lead investigator ondefendant's case, testified that he gave Clapp defendant's telephone number to call in order forhim to set up the controlled buys. He further testified that he was present when the calls weremade, that he conducted surveillance of the buys between defendant and Clapp and, thereafter,field tested and tagged for evidence the cocaine that defendant sold to Clapp. Contrary todefendant's assertions, Clapp and Woody each testified not only to what they would customarilydo in the situation before them, but also to what they actually did and observed in the instantcase. The People also presented the testimony of a forensic scientist with the State Police CrimeLaboratory that two of the bags that defendant sold to Clapp contained cocaine, but that thesubstance found on defendant did not.
Viewing the evidence in the light most favorable to the People, we find that the evidence waslegally sufficient to support defendant's convictions (see People v Bleakley, 69 NY2d490, 495 [1987]; People v Baltes,75 AD3d 656, 658 [2010], lv denied 15 NY3d 918 [2010]; People v Somerville, 72 AD3d1285, 1286 [2010]). Likewise, even if a different verdict would not have been unreasonable,upon our own review of the evidence and according the jury appropriate deference, we concludethat the verdict was not against the weight of the credible evidence (see People v Romero, 7 NY3d633, 643-644 [2006]; People v Bleakley, 69 NY2d at [*3]495; People v Baltes, 75 AD3d at 658).
We are not persuaded that defendant was denied the effective assistance of counsel. Withregard to his claim that defense counsel should have objected to County Court's instruction to thejury concerning his failure to testify, inasmuch as the instructions given were consistent withCPL 300.10, we cannot say that counsel's failure to object was ineffective (see People vMarshall, 65 AD3d at 713). Defendant has failed to demonstrate the absence of strategy orother legitimate explanation for counsel's conduct with respect to the additional claimeddeficiencies (see People v Caban, 5NY3d 143, 152 [2005]; People v Rivera, 71 NY2d 705, 709 [1988]; People v Miller, 13 AD3d 890,892 [2004]). Reviewing the record as a whole, it is apparent that counsel was well prepared,pursued a plausible defense strategy, offered articulate opening and closing arguments andvigorously cross-examined witnesses. Even if counsel's representation was less than perfect, "'the evidence, the law, and the circumstances of [the] case, viewed in totality and as of the time ofthe representation, reveal that the attorney provided meaningful representation' " (People vHenry, 95 NY2d 563, 565 [2000], quoting People v Baldi, 54 NY2d 137, 147[1981]; see People v Battease, 74AD3d 1571, 1575-1576 [2010], lv denied 15 NY3d 849 [2010]).
Defendant was properly sentenced as a second felony offender in view of his two prior felonyconvictions—one in 1992 for attempted burglary in the second degree (a violent felonyunder Penal Law § 70.02 [1] [b], [c]) and one in 1996 for promoting prison contraband inthe first degree (at which time he was sentenced as a second felony offender). Althoughdefendant contended at his sentencing here that he was told at the time of his 1992 plea to theburglary charge that it was a nonviolent felony, he failed to demonstrate good cause for hisfailure to contest that conviction at the time of his 1996 sentencing or on appeal therefrom. Thus,he waived any claim as to the unconstitutionality of the earlier conviction (see People v Alston, 1 AD3d 627,630 [2003], lv denied 1 NY3d 594 [2004]; People v Jones, 213 AD2d 801, 803[1995], lv denied 85 NY2d 975 [1995]).
Nor is defendant's sentence harsh and excessive. Defendant had numerous prior convictionsand violated his past probation and parole sentences by committing new crimes while undersupervision. "The fact that the sentence imposed after trial was greater than the sentence offeredas part of a pretrial plea agreement offer, which defendant rejected, is not proof that defendantwas penalized for exercising his right to a jury trial" (People v Robinson, 72 AD3d 1277, 1278 [2010], lv denied15 NY3d 809 [2010] [citation omitted]; see People v Somerville, 72 AD3d at 1288-1289;People v Brunson, 68 AD3d1551, 1557 [2009], lv denied 15 NY3d 748 [2010]). We find no extraordinarycircumstances or abuse of discretion warranting a modification of the sentence in the interest ofjustice.
Mercure, J.P., Peters, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.