| People v Buchanan |
| 2012 NY Slip Op 03677 [95 AD3d 1433] |
| May 10, 2012 |
| Appellate Division, Third Department |
| 1—The People of the State of New York, Respondent, vAnthony Buchanan, Also Known as Science, Also Known as Scientific,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 July 19,2002 in Albany County, upon a verdict convicting defendant of the crimes of criminal possessionof a controlled substance in the first degree, criminal possession of a controlled substance in thesecond degree, criminal possession of a controlled substance in the third degree (two counts),criminal use of drug paraphernalia in the second degree (two counts) and criminal possession of aweapon in the third degree (four counts).
In August 2001, defendant became a target of a narcotics investigation and, after observing,among other things, defendant enter and exit 677 Third Street and 46 Lexington Avenue in theCity of Albany on a number of occasions, the Albany Police Department obtained and executedsearch warrants at those locations. As a result, defendant was indicted and charged with criminalpossession of a controlled substance in the first degree, criminal possession of a controlledsubstance in the second degree, criminal possession of a controlled substance in the third degree(two counts), criminal use of drug paraphernalia in the second degree (two counts) and criminalpossession of a weapon in the third degree (four counts). Following a jury trial, defendant wasconvicted on all counts and sentenced as a second felony offender to an aggregate prison term of21 years to life. This appeal by defendant ensued.[*2]
Defendant's initial claim—that the verdict is notsupported by legally sufficient evidence—is unpreserved for our review in light ofdefendant's failure to make a particularized motion for dismissal at the close of the People's case(see People v Caston, 60 AD3d1147, 1148 [2009]). However, inasmuch as defendant also contends that the verdict isagainst the weight of the evidence, "we will consider the evidence adduced as to each of theelements of the challenged crimes in the context of that review" (People v Kennedy, 75 AD3d 766,767 [2010], lv denied 15 NY3d 853 [2010] [internal quotation marks and citationomitted]). As the People proceeded under the theory of constructive possession, they wererequired to establish that defendant exercised "dominion and control over the [contraband or the]area where the contraband was found" (People v Carter, 74 AD3d 1375, 1377 [2010], lv denied 15NY3d 772 [2010] [internal quotation marks and citation omitted]; see Penal Law §10.00 [8]; People v Echavarria, 53AD3d 859, 861 [2008], lv denied 11 NY3d 832 [2008]).
Here, the evidence at trial revealed that beginning on August 7, 2001 and continuing on anumber of days thereafter, various members of the Albany Police Department's CommunityResponse Unit (hereinafter CRU) undertook either fixed or roving surveillance of defendant anddocumented his travels back and forth between 46 Lexington Avenue and 677 ThirdStreet—the latter of which police believed to be defendant's residence. On August 31,2001, two officers set up fixed surveillance across the street from 677 Third Street atapproximately 6:00 a.m. Later that morning, defendant emerged and got into a black 2001Infiniti—a vehicle he had been observed driving on a number of prioroccasions—and drove to the vicinity of 46 Lexington Avenue.
At approximately 1:00 p.m., the surveillance team that was set up across the street from 46Lexington Avenue saw defendant approach on foot with Philip Stanfield and proceed to thataddress. Defendant entered while Stanfield remained outside, looking up and down the street.When defendant emerged, he handed Stanfield a plastic bag containing a "large chunk of [an]off-white substance," which Stanfield placed down his pants. Defendant and Stanfield thendeparted the Lexington Avenue address on foot but returned within the hour. This time, bothdefendant and Stanfield entered and stood inside the doorway. From their vantage point, thesurveillance team again observed defendant hand Stanfield a large chunk of an off-whitesubstance—"approximately the size of an egg."[FN1]Both of the encounters between defendant and Stanfield were captured on videotape that,together with certain still photographs, were admitted into evidence.
The police then obtained and executed search warrants for 46 Lexington Avenue, 677 ThirdStreet and the Infiniti. As a result of those searches, the police seized a .45-caliber handgun, aTec 9 submachine gun, ammunition and more than two ounces of crack cocaine packaged inseveral plastic baggies from a common hallway at the 46 Lexington Avenue address, togetherwith 10 ounces of crack cocaine, two digital scales, rubber gloves, numerous small plastic bagsand $14,500 in cash from a bedroom at the 677 Third Street address. A search of that bedroomalso revealed a quantity of men's clothing, together with a picture of defendant and [*3]certain personal papers belonging to him. When defendant wasapprehended offsite and searched, the police also recovered $1,241 in cash and three keys, one ofwhich fit the exterior door of 46 Lexington Avenue and one of which fit the door to thesecond-floor apartment at that address.[FN2]Additionally, one of the officers testified that, when asked during the booking process where helived, defendant indicated that he resided at 677 Third Street. Finally, the trial testimonyestablished that the weapons seized were operational, and the parties stipulated to the chain ofcustody and positive test results for the drugs seized from the Lexington Avenue and Third Streetaddresses.
Viewing this evidence in the light most favorable to the People, we are satisfied that there isa valid line of reasoning from which a jury reasonably could conclude that defendant exerciseddominion and control over the drugs and guns in issue (see generally People v Bleakley,69 NY2d 490, 495 [1987]; comparePeople v Carmichael, 68 AD3d 1704, 1705 [2009], lv denied 14 NY3d 798[2010]; People v Oldacre, 53 AD3d675, 678-679 [2008])—notwithstanding the fact that defendant's access to thecontraband may not have been exclusive (see e.g. People v Pinkney, 90 AD3d 1313, 1314-1315 [2011] [adefendant may be found guilty of constructive criminal possession of a weapon located onpremises even though others may have had access thereto]). Further, despite defendant'sprotestations to the contrary, we do not find the verdict to be against the weight of the evidence.
Nor are we persuaded that Supreme Court erred in denying defendant's motion for a mistrialbased upon the People's failure to notify defendant that they intended to introduce a statementmade by him during booking to establish that he resided at the Third Street address. Simply put,the People were not required to include "pedigree information obtained in response to a routinequestion asked during the booking process" in their CPL 710.30 notice (People vHamilton, 227 AD2d 669, 672 [1996], lv denied 88 NY2d 1068 [1996]; see People v Sidbury, 24 AD3d880, 881 [2005], lv denied 6 NY3d 818 [2006]).
We reach a similar conclusion with respect to defendant's motion for a mistrial based uponthe People's asserted violation of Supreme Court's Molineux ruling. When the Peoplemade their initial Molineux application, no mention was made of the two uncharged salesto Stanfield. When one of the CRU's detectives took the stand, however, he testified at lengthregarding his observations of those uncharged sales, and the videotape of those transactions wasreceived into evidence. Defense counsel moved for a mistrial,[FN3]and Supreme Court thereafter [*4]engaged in a"Ventimiglia-type discussion" with counsel (People v Civitello, 152 AD2d 812,813 [1989], lv denied 74 NY2d 947 [1989])—noting, and correctly so, that thesetransactions should have been part of the People's original Molineux application.
As to the substance of Supreme Court's analysis, it is apparent that the contemporaneousuncharged sales were admissible to establish the intent to sell element under Penal Law §220.16 (1) (see People v Hernandez,27 AD3d 229, 229 [2006], lv denied 7 NY3d 790 [2006]; People v Flores, 26 AD3d 196[2006], lv denied 7 NY3d 756 [2006]), were "inextricably interwoven with the drugpossession charges" (People v Kirk,16 AD3d 230, 230 [2005], lv denied 5 NY3d 790 [2005]; see People vHernandez, 27 AD3d at 229) and, finally, "provided a complete and coherent narrative of theevents leading to defendant's arrest" (People v Antegua, 7 AD3d 466, 467 [2004], lv denied 3NY3d 670 [2004]; see People v Flores, 26 AD3d at 196). Hence, we have no quarrel withSupreme Court's determination that the uncharged sales were highly probative and admissibleunder one or more of the recognized Molineux exceptions (see People vMolineux, 168 NY 264, 293 [1901]). Additionally, we are satisfied that Supreme Courtbalanced " 'the probative value and the need for the evidence against the potential for delay,surprise and prejudice' " (People vWilkinson, 71 AD3d 249, 254 [2010], quoting People v Alvino, 71 NY2d 233,242 [1987]).
Finally, based upon our review of the record as a whole, we cannot say that defendant wasdenied the effective assistance of counsel. To the extent that defendant faults counsel for failingto request a limiting instruction—either following Supreme Court's ruling as to theadmissibility of the contemporaneous uncharged sales or at the time of the finalcharge—counsel may well have made a strategic decision in this regard, reasoning thatsuch a request would only call further attention to the uncharged sales and, hence, would not bein his client's best interest (see People vCherry, 46 AD3d 1234, 1238 [2007], lv denied 10 NY3d 839 [2008]; see also People v McCall, 75 AD3d999, 1002 [2010], lv denied 15 NY3d 894 [2010]). Further, counsel provided cogentopening and closing statements, made appropriate motions and objections—including amotion for a mistrial—and effectively cross-examined the People's witnesses (see People v Abare, 86 AD3d 803,805-806 [2011]). Under these circumstances, and viewing counsel's representation in its entirety,we are satisfied that defendant was afforded meaningful representation. Defendant's remainingcontentions, to the extent not specifically addressed, have been examined and found to be lackingin merit.
Mercure, J.P., Spain, Kavanagh and Stein, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Stanfield subsequently wasconvicted of criminal possession of a controlled substance in the third degree based upon thesetransactions but, upon appeal, we reversed and remitted the matter for a new trial (People v Stanfield, 7 AD3d 918[2004]).
Footnote 2: The search of that apartment,which apparently was leased to someone other than defendant, did not disclose any contraband.
Footnote 3: Although defense counseladmittedly raised no objection to the proffered testimony or videotape while the detective was onthe stand, counsel moved for a mistrial shortly thereafter—based upon the assertedMolineux violation—and asked that all testimony and evidence relative to theuncharged sales be stricken, thereby sufficiently preserving this issue for our review (seeCPL 470.05 [2]; compare People v Echavarria, 53 AD3d at 862-863). In any event,inasmuch as defendant also raises an ineffective assistance of counsel claim in this regard(see infra), we nonetheless would review the Molineux issue in that context (see People v Oathout, 90 AD3d1418, 1421 [2011]; People v Echavarria, 53 AD3d at 863).