| People v Wilson |
| 2012 NY Slip Op 07233 [100 AD3d 1045] |
| November 1, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Clide Wilson,Appellant. |
—[*1] Terry J. Wilhelm, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Greene County (Pulver Jr., J.),rendered April 5, 2011, upon a verdict convicting defendant of the crimes of criminal possessionof a controlled substance in the third degree (two counts) and criminal sale of a controlledsubstance in the third degree.
Defendant was indicted and charged with various drug crimes in connection with his sale ofcrack cocaine to a confidential informant (hereinafter CI) on two separate occasions in August2009. Following a jury trial, defendant was convicted of criminal possession of a controlledsubstance in the third degree (two counts) and criminal sale of a controlled substance in the thirddegree and sentenced to an aggregate prison term of 18 years with four years of postreleasesupervision. This appeal by defendant ensued.
Defendant initially contends that the verdict is not supported by legally sufficient evidenceand, further, is against the weight of the evidence. We disagree. A person is guilty of criminalpossession of a controlled substance in the third degree when he or she "knowingly andunlawfully possesses . . . a narcotic drug with the intent to sell it" (Penal Law§ 220.16 [1]). Where, as here, the People proceed under the theory of constructivepossession, the proof must establish "that defendant exercised dominion and control over theproperty or the person who actually possessed the drugs" (People v Miller, 13 AD3d 890, 891 [2004]; see People v [*2]Buchanan, 95 AD3d 1433, 1433-1434 [2012]; People v Arrington, 31 AD3d 801,803 [2006], lv denied 7 NY3d 865 [2006]; People v Leader, 27 AD3d 901, 903 [2006]). Similarly, a person isguilty of criminal sale of a controlled substance in the third degree when he or she "knowinglyand unlawfully sells . . . a narcotic drug" (Penal Law § 220.39 [1]).
Here, the testimony offered by the CI (who had known defendant for a number of years), theundercover officers (who accompanied the CI on the dates in question and observed portions ofthe drug transactions) and the investigators (who provided the CI with buy money and stripsearched him before and after the subject transactions to ensure that he was not concealing anydrugs, currency or contraband), together with the audio recordings and the positive test results,establish that the verdict is supported by legally sufficient evidence and, further, is not against theweight of the evidence (see People vHeaney, 75 AD3d 836, 837 [2010], lv denied 15 NY3d 852 [2010]; People v Rolle, 72 AD3d 1393,1396 [2010], lv denied 16 NY3d 745 [2011]; People v Chatham, 55 AD3d 1045, 1046 [2008], lv denied14 NY3d 839 [2010]; People vThaddies, 50 AD3d 1249, 1250 [2008], lv denied 10 NY3d 965 [2008]; People v Golden, 24 AD3d 806,806-807 [2005], lv denied 6 NY3d 813 [2006]). Contrary to defendant's assertion, thereis sufficient credible evidence in the record to establish that he exercised dominion and controlover the location where the August 18, 2009 sale occurred. Additionally, with respect to theAugust 26, 2009 transaction, the CI's testimony is sufficient to demonstrate that defendantpossessed crack cocaine with the intent to sell on that date. Although the CI was an admitteddrug user and agreed to cooperate with the authorities in an effort to reduce certain outstandingcriminal charges against him, his credibility was fully vetted at trial (see infra), and wecannot say that his testimony was "inherently incredible or improbable" (People vHeaney, 75 AD3d at 837). Accordingly, according due deference to the jury's credibilitydeterminations (see People v Rolle, 72 AD3d at 1396; People v Pearson, 69 AD3d 1226,1228 [2010], lv denied 15 NY3d 755 [2010]), we discern no basis upon which to disturbthe verdict.
To the extent that defendant contends that County Court improperly limited defense counsel'scross-examination of the CI, again we disagree. "[A]lthough a criminal defendant is guaranteedthe right to confront all adverse witnesses through cross-examination, that right is not unlimited"(People v Francisco, 44 AD3d870, 870 [2007], lv denied 9 NY3d 1033 [2008] [citations omitted]). Indeed, thescope and extent of cross-examination is a matter committed to the trial court's sound discretionand, to that end, the court will be afforded "wide latitude to limit cross-examination on collateralmatters designed to impeach . . . credibility" (People v Love, 307 AD2d528, 532 [2003], lv denied 100 NY2d 643 [2003]; see People v Francisco, 44AD3d at 870; People v Dickerson, 309 AD2d 966, 968 [2003], lv denied 1 NY3d596 [2004]). Here, County Court permitted counsel to cross-examine the CI at length regardinghis prior convictions, but limited the extent to which counsel could delve into the underlyingfacts of each conviction, reasoning that such minutia did not bear upon credibility and wouldserve only to confuse the jury. Based upon our review of the record as a whole, we find thatCounty Court did not abuse its discretion in this regard.
Nor are we persuaded that County Court erred in denying defendant's motion for a mistrialbased upon testimony elicited from Heath Wood regarding defendant's prior bad acts. Although"evidence of prior bad acts or uncharged crimes is inadmissible to prove the crime charged or toshow a defendant's propensity to commit [a particular] crime, an exception to this rule existswhere the evidence is admitted to show a defendant's intent, especially after the defendant has puthis or her intent in issue" (People vWright, 5 AD3d 873, 875 [2004], lv denied 3 NY3d 651 [2004] [citationomitted]; see People v Echavarria,53 AD3d 859, 863 [2008], lv [*3]denied 11 NY3d832 [2008]), which is precisely what occurred here. Following circumspect questioning by thePeople on direct examination, defense counsel devoted the bulk of his cross-examination toattempting to portray Wood—at whose home the August 18, 2009 transactionoccurred—as the true drug dealer. In response to that questioning, the People asked Woodon redirect, "Who was the drug dealer?" and "[W]hose drugs were . . . sold?," andWood, in turn, identified defendant. As defendant's prior drug sales were probative of both hisknowing possession and intent to sell (see People v Echavarria, 53 AD3d at 863;People v Wright, 5 AD3d at 875-876), and as our review of the record reveals that theprobative value of such evidence outweighed its prejudicial effect, County Court did not err ineither admitting this testimony or denying defendant's subsequent motion for amistrial.[FN*]
Defendant next asserts that County Court committed various errors with respect to its chargeto the jury. Again, we disagree. Although defendant requested a missing witness charge basedupon the People's failure to call two witnesses to the August 26, 2009 transaction, in light of thetestimony of the CI and relevant undercover officer, as well as the audio recording of thattransaction, we cannot say that County Court abused its discretion in denying the requestedcharge, as such testimony plainly would have been cumulative (see People v Wilkins, 75 AD3d847, 848-849 [2010], lv denied 15 NY3d 857 [2010]; People v Darby, 72 AD3d 1280,1282-1283 [2010], lv denied 15 NY3d 749 [2010]). As for defendant's claim that reversalis warranted due to County Court's refusal to charge the jury that the CI and Wood wereinterested witnesses, we are of the view that the court's charge as a whole, particularly withrespect to credibility, motive and benefit, was sufficient to adequately convey the need toscrutinize the testimony at issue (see People v Inniss, 83 NY2d 653, 659 [1994]; People v Kettreis, 19 AD3d 706,707 [2005], lv denied 5 NY3d 807 [2005]; cf. People v Ballard, 38 AD3d 1001, 1003 [2007], lv denied9 NY3d 840 [2007])—especially given the degree to which defense counsel "hammeredat" (People v Inniss, 83 NY2d at 659) the credibility, bias and interest of Wood and theCI during counsel's opening and closing statements, as well as his cross-examination of thosewitnesses. Finally, although defendant now asserts that County Court should have provided amore particularized circumstantial evidence charge, defendant not only made no such request tocharge but, indeed, opposed County Court's charge on this point. Hence, we deem this issueunpreserved for our review (see Peoplev Kennedy, 78 AD3d 1233, 1236 [2010], lv denied 16 NY3d 896 [2011]).
Finally, we reject defendant's claim that he was denied the effective assistance of counselbecause the Public Defender who appeared with defendant at his bail application, DominicCornelius—the first of at least four attorneys to appear upon defendant'sbehalf—represented the CI at the time of trial. As a starting point, it is by no means clearthat there was in fact any actual overlap in representation. Additionally, when this issue arosemid-trial, County Court twice questioned Cornelius regarding the matter, in response to whichCornelius indicated [*4]that he did not recognize defendant, didnot recall representing defendant, did not provide any substantive legal advice to or engage in anydetailed discussions with defendant and did not recall ever discussing any form of a plea fordefendant with the District Attorney's office. Under these circumstances, we cannot say "that 'theconduct of [defendant's] defense was in fact affected by the operation of the [asserted] conflict ofinterest' " (People v Longtin, 92 NY2d 640, 644 [1998], cert denied 526 US 1114[1999], quoting People v Alicea, 61 NY2d 23, 31 [1983]; see People v Gunney, 13 AD3d980, 983 [2004], lv denied 5 NY3d 789 [2005]; see also People v Monette, 70 AD3d 1186, 1187-1188 [2010],lv denied 15 NY3d 776 [2010]) and, hence, we are unable to conclude that defendant wasdenied the effective assistance of counsel.
Defendant's remaining contentions, to the extent not specifically addressed, have beenexamined and found to be lacking in merit.
Peters, P.J., Lahtinen, Kavanagh and Stein, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: To the extent that defendantcontends that County Court failed to give appropriate limiting instructions—either at thetime Wood's testimony was received or in the final jury charge—we note that defendantmade no specific request in this regard and, therefore, this issue is unpreserved for our review (see People v Cherry, 46 AD3d1234, 1237 [2007], lv denied 10 NY3d 839 [2008]). In any event, in light of theoverwhelming evidence of defendant's guilt, we would find any error to be harmless.