| People v Whitfield |
| 2014 NY Slip Op 01856 [115 AD3d 1181] |
| March 21, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vRhashay R. Whitfield, 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.),rendered December 20, 2010. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a controlled substance in the third degree, conspiracy in the fourthdegree and criminal impersonation in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of,inter alia, criminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]), defendant contends that County Court erred in allowing him toproceed pro se. We reject that contention. "Implicit in the exercise of [the constitutionalright to counsel] is the concomitant right to forego the advantages of counsel andrepresent oneself" (People v Arroyo, 98 NY2d 101, 103 [2002]; see People v Henriquez, 3NY3d 210, 215 [2004]). Here, we conclude that the court conducted the requisite "'searching inquiry' to insure that defendant's request to proceed pro se was accompaniedby a 'knowing, voluntary and intelligent waiver of the right to counsel' " (People v Providence, 2 NY3d579, 580 [2004], quoting Arroyo, 98 NY2d at 103; see People v DePonceau, 96AD3d 1345, 1347 [2012], lv denied 19 NY3d 1025 [2012]; People v Herman, 78 AD3d1686, 1686-1687 [2010], lv denied 16 NY3d 831 [2011]) and, contrary tothe contention of defendant, the court repeatedly warned him of the risks associated withproceeding pro se (see People vChandler, 109 AD3d 1202, 1203 [2013]; People v Clark, 42 AD3d 957, 958 [2007], lvdenied 9 NY3d 960 [2007]).
Although defendant contends that his responses during the inquiry and hissubsequent conduct and statements revealed his lack of knowledge of the law andcriminal procedure, it is well established that, " '[r]egardless of his lack of expertise andthe rashness of his choice,' . . . defendant may 'choose to waive counsel ifhe [does] so knowingly and voluntarily' " (People v Gillian, 8 NY3d 85, 88 [2006], quotingPeople v Vivenzio, 62 NY2d 775, 776 [1984]). We conclude that defendantmade a knowing and voluntary choice in this case. We reject defendant's furthercontention that the court had a continuing obligation to ask defendant, at various pointsduring the proceedings, whether he wished to continue to represent himself, particularlywhere, as here, defendant gave no indication to the contrary (see generallyVivenzio, 62 NY2d at 776).
Defendant further contends that he was deprived of a fair trial by prosecutorial [*2]misconduct. Defendant's contention with respect to most ofthe instances of alleged prosecutorial misconduct have not been preserved for our review(see People v Mull, 89AD3d 1445, 1446 [2011], lv denied 19 NY3d 965 [2012]), and we declineto exercise our power to review his contention with respect to those instances of allegedmisconduct as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]). We conclude that the remaining instances of misconduct were "not so egregious asto deprive defendant of a fair trial" (People v Wittman, 103 AD3d 1206, 1207 [2013], lvdenied 21 NY3d 915 [2013]; see People v Eldridge, 288 AD2d 845, 845-846[2001], lv denied 97 NY2d 681 [2001]). We reject defendant's further contentionthat the court erred in its Molineux ruling. Testimony concerning defendant'sprior drug sales was admissible with respect to the issue of defendant's intent to selldrugs (see People v Ray, 63AD3d 1705, 1706 [2009], lv denied 13 NY3d 838 [2009]; People v Lowman, 49 AD3d1262, 1263 [2008], lv denied 10 NY3d 936 [2008]; People v Williams, 21 AD3d1401, 1402-1403 [2005], lv denied 5 NY3d 885 [2005]), as well as " 'tocomplete the narrative of events leading up to the crime for which defendant [was] ontrial' " (Ray, 63 AD3d at 1706). Further, we conclude that the probative value ofsuch evidence outweighed its prejudicial impact (see People v Alvino, 71 NY2d233, 242 [1987]).
We agree with defendant that it was improper for the People to condition the plea ofa codefendant upon his promise not to testify at defendant's trial and to threaten toincrease the codefendant's sentence should he violate that condition (see e.g. People vTurner, 45 AD2d 749, 749-750 [1974]; Maples v Stegall, 427 F3d 1020,1033-1034 [2005]; United States v Henricksen, 564 F2d 197, 198 [1977]; cf. People v Dixon, 93 AD3d894, 895-896 [2012]). As the United States Supreme Court wrote in Washingtonv Texas (388 US 14, 19 [1967]), "[t]he right to offer the testimony of witnesses, andto compel their attendance, if necessary, is in plain terms the right to present a defense,the right to present the defendant's version of the facts as well as the prosecution's to thejury so it may decide where the truth lies. Just as an accused has the right to confront theprosecution's witnesses for the purpose of challenging their testimony, he [or she] has theright to present his [or her] own witnesses to establish a defense. This right is afundamental element of due process of law." Thus, "substantial interference by the Statewith a defense witness' free and unhampered choice to testify violates due process assurely as does a willful withholding of evidence" (People v Shapiro, 50 NY2d747, 761 [1980]; see People vSharpe, 70 AD3d 1184, 1186 [2010], lv denied 14 NY3d 892 [2010]).Here, however, defendant was not prejudiced by the improper plea condition inasmuchas the court granted his motion to permit the codefendant to testify on defendant's behalfwithout exposure to a more severe sentence, and the court advised the codefendant of itsruling (see United States v Foster, 128 F3d 949, 953 [1997]).
Contrary to the further contention of defendant, he was not denied a fair trial by theprosecutor's refusal to grant immunity to the codefendant. This is not a case in which"witnesses favorable to the prosecution are accorded immunity while those whosetestimony would be exculpatory of the defendant are not, or . . . where thefailure to grant immunity deprives the defendant of vital exculpatory testimony"(Shapiro, 50 NY2d at 760; see People v Owens, 63 NY2d 824, 825-826[1984]). In any event, the codefendant did testify at trial and he provided exculpatorytestimony to the effect that he alone possessed the drugs at issue without defendant'sknowledge or participation and that defendant did not help him purchase those drugs.
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's contention that the verdict is againstthe weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). "Although a different result would not have been unreasonable, the jury was inthe best position to assess the credibility of the witnesses and, on this record, it cannot besaid that the jury failed to give the evidence the weight it should be accorded" (People v Orta, 12 AD3d1147, 1147 [2004], lv denied 4 NY3d 801 [2005]).[*3]
Defendant failed to preserve for our review hiscontention that, in sentencing him, the court penalized him for exercising the right to ajury trial (see People vTrinidad, 107 AD3d 1432, 1432 [2013], lv denied 21 NY3d 1046[2013]; People v Irrizarry,37 AD3d 1082, 1083 [2007], lv denied 8 NY3d 946 [2007]). In any event, itis well settled that " '[t]he mere fact that a sentence imposed after trial is greater than thatoffered in connection with plea negotiations is not proof that defendant was punished forasserting [his] right to trial' " (People v Galens, 111 AD3d 1322, 1323 [2013]), and "[a]review of the record reveals no evidence of retaliation or vindictiveness on the part ofCounty Court" (Irrizarry, 37 AD3d at 1083; see Trinidad, 107 AD3d at1432-1433).
Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P.,Peradotto, Lindley, Valentino and Whalen, JJ.