| People v Coles |
| 2013 NY Slip Op 02876 [105 AD3d 1360] |
| April 26, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vTyqwan Coles, Also Known as Smooth, Also Known as Smoove, Also Known as KevinHarris, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Brian D. Dennis of counsel),for respondent.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.),rendered July 16, 2010. The judgment convicted defendant, upon a jury verdict, ofcriminal sale of a controlled substance in the third degree (two counts), criminalpossession of a controlled substance in the third degree (two counts), unlawfulpossession of marihuana and criminally using drug paraphernalia in the second degree.
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Ontario County Court for further proceedings in accordance with thefollowing memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, two counts each of criminal sale of a controlled substance in thethird degree (Penal Law § 220.39 [1]) and criminal possession of a controlledsubstance in the third degree (§ 220.16 [1]). Defendant's contention that theevidence is legally insufficient to support the conviction of those counts is preserved forour review only insofar as he contends that the two main prosecution witnesses were notcredible (see People v Gray, 86 NY2d 10, 19 [1995]), and that contention iswithout merit (see People v Moore [appeal No. 2], 78 AD3d 1658, 1659 [2010]).The relevant witnesses' testimony was not "incredible as a matter of law inasmuch as itwas not . . . manifestly untrue, physically impossible, contrary toexperience, or self-contradictory" (People v Harris, 56 AD3d 1267, 1268 [2008], lvdenied 11 NY3d 925 [2009]).
We reject defendant's contention that County Court erred in denying hisBatson challenge. The prosecutor provided race-neutral reasons for exercising aperemptory challenge with respect to the prospective juror, i.e., that the juror had a lawdegree and he did not want jurors with law degrees on the panel (see People v Ardrey, 92 AD3d967, 969 [2012], lv denied 19 NY3d 861 [2012]), and that she worked as ahuman rights specialist, which the prosecutor perceived as a career indicating a bias infavor of the defense (see People v Tucker, 256 AD2d 1019, 1020 [1998]). Thecourt properly determined that the proffered reasons were not pretextual (see People v Johnson, 74AD3d 1912, 1913 [2010]; People v Sampson, 74 AD3d 1866, 1867 [2010], lvdenied 15 NY3d 923 [2010]).
Contrary to defendant's further contention, the court properly denied his motion for a[*2]mistrial, which was based on allegations ofprosecutorial misconduct during summation. In his opening statement, defense counseltold the jurors that they would "see a lot of sharks" during the trial. In his summation,defense counsel said "I promised you sharks and we got sharks," and then said that twoof the prosecution witnesses were sharks. In response, the prosecutor said "[s]harks arepredators. Sharks take advantage of smaller, weaker fish. That is the shark right there,(INDICATING)." Later, he said "[t]he only shark—well, there's two I guess youcould say, but they're sitting on that side of the Courtroom. They didn't take that witnessstand like [two prosecution witnesses] did and tell you the truth." Defense counselobjected and moved for a mistrial. The court issued a curative instruction that the jurywas to disregard the prosecutor's "comment that there's two sharks sitting over there andfurther disregard the comment that they didn't take the witness stand. You are instructedto disregard that. Obviously the reference was to [d]efendant and [defense counsel], andobviously [defense counsel] doesn't have to testify. He is not a witness in this case."Although defendant did in fact testify, we conclude that the court should have instructedthe jury that defendant was not required to do so and that the People bore the burden ofproof (see People vPeterson, 71 AD3d 1419, 1420 [2010], lv denied 14 NY3d 891 [2010]).Nevertheless, we conclude that the prosecutor's comments were not so egregious as todeny defendant a fair trial (see People v Williams, 195 AD2d 986, 987 [1993],lv denied 82 NY2d 905 [1993]).
Many of the remaining instances of alleged prosecutorial misconduct have not beenpreserved for our review (see CPL 470.05 [2]), and in any event most of theinstances that defendant contends constituted misconduct were entirely proper, such asthe prosecutor's fair comment on the evidence (see People v Green, 60 AD3d 1320, 1322 [2009], lvdenied 12 NY3d 915 [2009]). To the extent that any of the conduct was improper,we conclude that the " 'improprieties were not so pervasive or egregious as to deprivedefendant of a fair trial' " (People v Johnson, 303 AD2d 967, 968 [2003], lvdenied 100 NY2d 583 [2003]; see People v Caldwell, 98 AD3d 1272, 1273 [2012], lvdenied 20 NY3d 985 [2012]).
Defendant failed to preserve for our review his challenges to the validity of thesearch warrant (see CPL 470.05 [2]), and we decline to exercise our power toreview those challenges as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]). Defendant further contends that the court should have suppressedthe evidence seized from his apartment and his statement to the police because the policeentered his home unlawfully prior to the issuance of the warrant. "It is firmly establishedthat 'police officers need either a warrant or probable cause plus exigent circumstances inorder to make a lawful entry into a home' " (People v Kilgore, 21 AD3d 1257, 1257 [2005], quotingKirk v Louisiana, 536 US 635, 638 [2002]). While we agree with the court thatthe police had probable cause to enter defendant's apartment, we conclude that the courterred in determining that there were exigent circumstances.
Factors to consider in determining whether exigent circumstances exist are "(1) thenature and degree of urgency involved and the amount of time needed to obtain awarrant; (2) a reasonable belief that the contraband is about to be removed; (3) thepossibility of danger to police officers guarding the site of the contraband while a searchwarrant is sought[;] and (4) information indicating that the possessors of the contrabandare aware that the police are on their trail" (People v Lewis, 94 AD2d 44, 49[1983]; see also People v Bost, 264 AD2d 425, 426 [1999]). Here, the Peoplefailed to meet their burden of establishing that exigent circumstances existed to enterdefendant's apartment without a warrant (see generally People v Knapp, 52NY2d 689, 694 [1981]). The People established that, earlier that day, defendant solddrugs to a police agent inside his residence. In the afternoon, defendant again sold drugsto the police agent at a location outside his home. Defendant was arrested after that saleas he was driving his vehicle back toward his residence. The police went to defendant'sresidence 45 minutes after his arrest and climbed through a window to make sure that noone was inside the residence who could destroy evidence before the police could obtain awarrant.[*3]
Based on that evidence, we conclude that therewas no urgency to enter defendant's residence. Although there was a reasonable beliefthat contraband was inside the residence, there was no reasonable belief that it was aboutto be removed, that the police would be in danger as they guarded the residence, or thatdefendant had accomplices who would try and destroy any contraband inside theresidence. Indeed, defendant was in custody at the police station at the time of the search,and there was no testimony that any other person was likely to be inside the residence (see People v Weathers, 100AD3d 1521, 1522 [2012]; People v Harper, 100 AD3d 772, 774 [2012]). Moreover,this case does not involve a situation where the police agent told the officers that otherpersons were present when she purchased the drugs from defendant (cf. People v Bryant, 91 AD3d558, 558 [2012], lv denied 20 NY3d 1009 [2013]; People vLasso-Reina, 305 AD2d 121, 122 [2003], lv denied 100 NY2d 595 [2003]).
While we conclude that the People did not establish that exigent circumstancesexisted, they raised the independent source theory at the suppression hearing (cf.Weathers, 100 AD3d at 1522). In light of its determination that exigentcircumstances existed, the court did not rule on whether defendant established that theseizure of the evidence and his statement to the police were causally related to theunlawful entry into his residence (see generally People v Arnau, 58 NY2d 27, 32[1982], cert denied 468 US 1217 [1984]). We have no power to " 'review issueseither decided in an appellant's favor, or not ruled upon, by the trial court' " (People v Concepcion, 17NY3d 192, 195 [2011]), and we thus cannot address the independent source theory(see People v Ingram, 18NY3d 948, 949 [2012]). We therefore hold the case, reserve decision and remit thematter to County Court to determine whether the evidence and statement should besuppressed as the fruit of the illegal entry (see People v Adams, 96 AD3d 1588, 1589 [2012]; see generally People vMuhammad, 17 NY3d 532, 547 [2011]). Present—Centra, J.P., Fahey,Carni, Lindley and Whalen, JJ.