| People v Morris |
| 2012 NY Slip Op 08357 [101 AD3d 1165] |
| December 6, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DhimitricMorris, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered August 26, 2010, upon a verdict convicting defendant of the crime of criminal sale of acontrolled substance in the third degree.
Defendant was charged with criminal sale of a controlled substance in the third degree afterallegedly selling crack cocaine to a confidential informant (hereinafter CI). County Court held aSandoval hearing and ruled that the People could cross-examine defendant regarding,among other things, his prior conviction for criminal possession of a loaded firearm in the thirddegree. At the ensuing jury trial, defendant did not testify, and he was convicted as charged.County Court sentenced him, as a second felony offender, to 10 years in prison and three years ofpostrelease supervision.
Although defendant contends that his conviction was against the weight of the evidence, hedid not dispute that crack cocaine was recovered from the CI and that she testified to havingpurchased it from him. While defendant made substantial efforts to call the CI's version of eventsinto question, a police detective who observed the transaction largely corroborated her account.The jury chose to credit that testimony in finding that defendant had "knowingly and unlawfully[sold] a narcotic drug" (Penal Law § 220.39 [1]). Viewing the evidence in a neutral [*2]light and deferring to the jury's credibility determinations, we findthat the jury gave the evidence the weight it should be accorded (see People v Edwards, 96 AD3d1089, 1091 [2012], lv denied 19 NY3d 1102 [2012]; People v Wilson, 78 AD3d 1213,1216 [2010], lv denied 16 NY3d 747 [2011]; People v Morris, 25 AD3d 915, 918 [2006], lv denied 6NY3d 851 [2006]).
We also find that County Court struck an appropriate balance in its Sandoval ruling.The court barred inquiry into defendant's misdemeanor convictions and limited the inquiry intohis numerous drug-related felony convictions. While the People were permitted to fully inquireinto defendant's 1997 conviction for criminal possession of a loaded firearm, that conviction was"material and relevant to the issue of the defendant's credibility" (People v Severino, 243AD2d 737, 738 [1997], lv denied 91 NY2d 880 [1997]; see People v Rogers, 163AD2d 157, 158 [1990], lv denied 76 NY2d 943 [1990]). Further, the age or remotenessof a conviction is of less importance where, as here, defendant was incarcerated for a significantportion of the intervening years (seePeople v Woodard, 93 AD3d 944, 946 [2012]; People v Wilson, 78 AD3d at1216).
Nor can we agree with defendant's assertion that he received the ineffective assistance ofcounsel. His counsel persistently advanced the defense that defendant had not sold the drugs,relying upon the lack of any physical or documentary evidence tying defendant to the crime, aswell as the CI's alleged lack of credibility, her opportunity to secrete drugs on her person and herinteraction with other individuals before the alleged transaction took place. Counsel's decision toargue that the CI had purchased the cocaine from another drug dealer and not from defendant,rather than dwell on the chain of custody or discrepancies in the reported weight of the cocaine,was a supportable tactical decision—particularly as weight was not an element of theoffense charged (see Penal Law § 220.39 [1]; People v Brown, 44 AD3d 965, 966 [2007], lv denied 9NY3d 1031 [2008]; People v Alexander, 255 AD2d 708, 709 [1998], lv denied93 NY2d 897 [1999]). Further, our review of the record discloses no support for defendant'sspeculation that the CI was shown more than one photo array, and counsel thoroughlycross-examined her regarding her ability to identify defendant from the array. Indeed, counselmade numerous objections, vigorously cross-examined witnesses and plausibly contended thatdefendant had not sold the drugs. When viewed in the totality of the circumstances here, we findthat defendant received meaningful representation (see People v Phillips, 96 AD3d 1154, 1156 [2012], lvdenied 19 NY3d 1000 [2012]; People v Kuforiji, 88 AD3d 1165, 1166 [2011]).
We have examined defendant's remaining contentions, including his claim that the sentenceimposed was harsh and excessive, and find them to be without merit.
Mercure, J.P., Lahtinen, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.