| People v Whitehead |
| 2014 NY Slip Op 05213 [119 AD3d 1080] |
| July 10, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 The People of the State of New York, Respondent, vShedret Whitehead, Appellant. |
Bruce Evans Knoll, Albany, for appellant.
James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Sullivan County(LaBuda, J.), rendered January 24, 2012, convicting defendant following a nonjury trialof the crimes of criminal possession of a controlled substance in the third degree (twocounts), tampering with physical evidence, resisting arrest and driving while abilityimpaired by drugs, and of the traffic infraction of failing to display lighted headlamps.
On March 1, 2011 at about 2:35 a.m., two state troopers initiated a traffic stop afterobserving a car driven by defendant with its lights off while on State Route 42 in theTown of Thompson, Sullivan County. Defendant was described as acting "jittery" and"excited" with "glassy, bloodshot and dilated" eyes, and the troopers reportedly saw aportion of a plastic bag with a powdery substance protruding from defendant's partiallyunzipped pants. He was ordered out of the car where he attempted to reach for theunzipped area of his pants ignoring directives to stop. A struggle ensued during whichdefendant threw the bag toward an overpass. It fell just short of the overpass, where itwas retrieved and found to contain smaller bags all with cocaine. Defendant was arrestedand taken to the police station where a field sobriety test was administered and, afterMiranda warnings, he admitted using cocaine earlier in the night. A paramedicfailed in his efforts to draw defendant's blood at the station and, despite warnings about arefusal, defendant refused to be taken to a hospital for a blood test. Defendant wasindicted for criminal possession of a controlled substance in the third degree (twocounts), tampering with physical evidence, resisting arrest, driving while ability impairedby drugs and [*2]the violation of inadequate head lamps.He was found guilty of all counts following a nonjury trial and sentenced, as a secondfelony offender, to an aggregate prison term of 10 years followed by three years ofpostrelease supervision. Defendant appeals.
Defendant initially argues that the integrity of the grand jury proceeding wasimpaired by evidentiary errors including hearsay and improper opinion proof. This issuewas not preserved for our review by a motion to dismiss the indictment upon suchground (see People v Fancher, 267 AD2d 770, 771 [1999], lv denied 94NY2d 919 [2000]; People v Boyer, 216 AD2d 795, 796 [1995], lv denied86 NY2d 840 [1995]). In any event, the argument is unavailing in that there was ampleproper evidence before the grand jury to sustain the indictment and the errors asserted areinsufficient to require the exceptional remedy of dismissal of the indictment (see People v Miller, 110 AD3d1150, 1150-1151 [2013]; People v Farley, 107 AD3d 1295, 1295 [2013], lvdenied 21 NY3d 1073 [2013]).
Although defendant failed to preserve his contention regarding the legal sufficiencyof the evidence, he also advances a weight of the evidence argument and "our weight ofthe evidence review necessarily involves an evaluation of whether all elements of thecharged crime[s] were proven beyond a reasonable doubt at trial" (People v Gaudiosi, 110 AD3d1347, 1348 [2013], lv denied 22 NY3d 1040 [2013] [internal quotationmarks and citations omitted]; see People v Mann, 63 AD3d 1372, 1373 [2009], lvdenied 13 NY3d 861 [2009]). The People presented proof that defendant wasobserved by the troopers driving without lights in the middle of the night. After stoppinghim, a bag containing a white powdery substance was openly visible to the troopers.When defendant was asked to exit the car, he got into a physical altercation with thetroopers and attempted to throw the bag over an overpass. Defendant refused to stopfighting despite being directed to do so and after being told he was under arrest. Hecontinued to fight until pepper spray was used. He failed at least one field sobriety testand acknowledged that he had ingested cocaine. The bag that he threw was quicklyretrieved, it contained over one-half ounce of cocaine—both powder andcrack—which was packaged in four separate bags, as would be used for sales. Hehad a large sum of cash with him. He testified and offered a different version on someevents, but County Court found in its written decision the testimony of the police to becredible. Upon weighing and considering the proof in a neutral light, while deferring tothe factfinder's credibility determination, we are unpersuaded that the verdict is againstthe weight of the evidence (seePeople v Harvey, 96 AD3d 1098, 1100 [2012], lv denied 20 NY3d 933[2012]; People v Vargas, 72AD3d 1114, 1118-1119 [2010], lv denied 15 NY3d 758 [2010]).
We agree with defendant that, during a portion of the trial, he was improperlypermitted to remain in shackles and also that one statement he made to a policeinvestigator should have been suppressed. However, such errors were harmless under thecircumstances given the quantum and nature of the proof of defendant's guilt, as well asthere being no reasonable possibility that these errors affected the factfinder's verdict(see People v Grant, 45 NY2d 366, 378-379 [1978]). Even in a nonjury trial, adefendant should not remain restrained in the courtroom unless the trial court sets forthparticularized reasons for such restraint on the record (see People v Best, 19 NY3d739, 743-744 [2012]), which was not done here. Further, review of the suppressionhearing reveals that, after giving many admissible and Mirandized statements to police,defendant eventually invoked his right to remain silent, which required that questioningstop (see People v Ferro, 63 NY2d 316, 322 [1984], cert denied 472 US1007 [1985]); nonetheless shortly thereafter a police investigator asked defendant whyhis zipper had been open in the car, prompting the response that he had urinated prior tobeing stopped. In light of the [*3]overwhelming proof ofdefendant's guilt and the absence of any indication that either of these matters impactedthe court's verdict, the errors were harmless.
The "refusal to take a chemical test may be evidenced by words or conduct"(People v Richburg, 287 AD2d 790, 792 [2001], lv denied 97 NY2d 687[2001]), and County Court did not err in admitting evidence regarding defendant'srefusal to permit his blood to be drawn based upon proof at the suppression hearing thathis conduct thwarted the efforts to draw his blood. We note that the proof at trialregarding defendant's refusal was less compelling; however, in its written decision,County Court set forth other proof upon which it relied regarding such count, and there isno indication that it inferred a consciousness of guilt from defendant's purported refusal(see People v Anderson, 89AD3d 1161, 1162 [2011]).
Review of the record reveals that defendant received meaningful representation and,accordingly, we are unpersuaded by his ineffective assistance of counsel argument(see People v Henry, 95 NY2d 563, 565 [2000]). The remaining contentions havebeen considered and are unavailing.
Peters, P.J., Garry, Rose and Devine, JJ., concur. Ordered that the judgment isaffirmed.