| People v Jackson |
| 2012 NY Slip Op 03342 [94 AD3d 1559] |
| April 27, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Anthony C.Jackson, Jr., Appellant. |
—[*1] Cindy F. Intschert, District Attorney, Watertown (Harmony A. Healy of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedDecember 14, 2010. The judgment convicted defendant, upon a jury verdict, of criminal sale of acontrolled substance in the second degree, criminal sale of a controlled substance in the thirddegree and criminal possession of a controlled substance in the third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial ofone count each of criminal sale of a controlled substance in the second degree (Penal Law§ 220.41 [1]) and criminal sale of a controlled substance in the third degree (§220.39 [1]), and two counts of criminal possession of a controlled substance in the third degree(§ 220.16 [1]). The conviction arises out of defendant's sale of cocaine to a policeinformant on two separate occasions on a single day. Defendant rejected a plea offer that wouldhave subjected him to a local sentence of one year in jail, and the matter proceeded to a trial thatresulted in a hung jury. Defendant thereafter was convicted of the above crimes following aretrial.
We reject defendant's contention that County Court's pretrial Molineux rulingconstitutes an abuse of discretion (see People v Molineux, 168 NY 264 [1901]). Thecourt thereby denied the People's request to admit evidence of a prior uncharged drug sale bydefendant to the informant, but ruled that such evidence could be admitted if defendant openedthe door to it at trial. Although evidence of the prior uncharged drug sale was not admitted attrial, defendant asserts that he would have testified if not for the court's improper conditionalruling. We conclude that the court's ruling was proper (see People v Rojas, 97 NY2d 32,36-38 [2001]; People v Cimino, 49AD3d 1155, 1156 [2008], lv denied 10 NY3d 861 [2008]; People v Ortiz,259 AD2d 979, 980 [1999], lv denied 93 NY2d 1024 [1999]). We further conclude thatthe court properly allowed the People to introduce evidence at trial that defendant had offered topay the informant $5,000 if the informant did not testify at the retrial. It is well settled that"[e]vidence that a defendant attempted to procure false testimony or to corrupt a witness isgenerally admissible as evidence of consciousness of guilt" (People v Violante, 144AD2d 995, 996 [1988], lv denied 73 NY2d 897 [1989], citing People v Davis, 43NY2d 17, 26 [1977], cert denied 435 US 998 [1978], rearg dismissed 61 NY2d670 [1983]; see People v Hendricks [appeal No. 1], 4 AD3d 798, 799 [2004], lvdenied 2 NY3d 800 [2004]).[*2]
Defendant further contends that the court should haveprecluded three police officers from offering identification testimony at trial based on thePeople's failure to comply with the notice requirements of CPL 710.30. That contention isunpreserved for our review (see CPL 470.05 [2]; People v Pagan, 248 AD2d 325[1998], affd 93 NY2d 891 [1999]), and in any event lacks merit. CPL 710.30 applies to "'in-court identifications predicated on earlier police-arranged confrontations between a defendantand an eyewitness, typically involving the use of lineups, showups or photographs, for thepurpose of establishing the identity of the criminal actor' " (People v Gee, 286 AD2d 62,72 [2001], affd 99 NY2d 158 [2002], rearg denied 99 NY2d 652 [2003], quotingPeople v Gissendanner, 48 NY2d 543, 552 [1979]; see generally People vPeterson, 194 AD2d 124, 128 [1993], lv denied 83 NY2d 856 [1994]). Where, ashere, "there has been no pretrial identification procedure and the defendant is identified in courtfor the first time, the defendant is not [thereby] deprived of a fair trial because [defendant] is ableto explore weaknesses and suggestiveness of the identification in front of the jury" (People v Madison, 8 AD3d 956,957 [2004], lv denied 3 NY3d 709 [2004] [internal quotation marks omitted]).
Defendant failed to preserve for our review his contention that the People improperlyattempted to elicit identification testimony from a person present when the drug sales took place(see CPL 470.05 [2]). We note in any event that the witness in question did not in factmake an in-court identification of defendant. Defendant also failed to preserve for our review hiscontention that the court punished him for exercising his constitutional right to a trial bysentencing him to five years in prison rather than to the one year in jail offered during pretrialplea negotiations (see People vBrink, 78 AD3d 1483, 1485 [2010], lv denied 16 NY3d 742 [2011],reconsideration denied 16 NY3d 828 [2011]; People v Dorn, 71 AD3d 1523, 1523-1524 [2010]). In any event, asthe Court of Appeals has noted, "a State may encourage a guilty plea by offering substantialbenefits, notwithstanding the fact that every such instance is bound to have the concomitanteffect of discouraging a defendant's assertion of his trial rights" (People v Pena, 50 NY2d400, 411-412 [1980], rearg denied 51 NY2d 770 [1980], cert denied 449 US1087 [1981]). Here, our "review of the record shows no retaliation or vindictiveness against thedefendant for electing to proceed to trial" (People v Shaw, 124 AD2d 686, 686 [1986],lv denied 69 NY2d 750 [1987]). Nor is the sentence unduly harsh or severe. Although thecourt could have imposed consecutive sentences totaling 19 years of imprisonment on the twocounts of criminal sale of a controlled substance, the court instead imposed concurrent sentenceswith a maximum of five years of imprisonment. We also note that defendant refused to acceptresponsibility for his crimes and that, while these charges were pending, he was convicted ofother criminal charges in Bronx County.
We further conclude that the court did not err in allowing the People to introduce audiorecordings of the controlled buys. Although portions of the recordings are less than clear, they arenot "so inaudible and indistinct that the jury would have to speculate concerning [their] contents"and would not learn anything relevant from them (People v Cleveland, 273 AD2d 787,788 [2000], lv denied 95 NY2d 864 [2000]; see People v Rivera, 257 AD2d 172,176 [1999], affd 94 NY2d 908 [2000]). Finally, viewing the evidence in light of theelements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict is not against the weight of the evidence (see generally People v Bleakley,69 NY2d 490, 495 [1987]). Present—Scudder, P.J., Centra, Lindley, Sconiers andMartoche, JJ.