| People v Richards |
| 2015 NY Slip Op 00662 [124 AD3d 1146] |
| January 29, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Chad Richards, Appellant. |
Thomas J. Melanson, Kingston, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Clark, J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered March29, 2013 in Ulster County, upon a verdict convicting defendant of the crimes of criminalpossession of a controlled substance in the third degree (two counts) and criminal sale ofa controlled substance in the third degree (two counts).
After a confidential informant (hereinafter CI) made two controlled buys of cocainefrom him, defendant was charged in an indictment with two counts of criminalpossession of a controlled substance in the third degree and two counts of criminal saleof a controlled substance in the third degree. Defendant was found guilty as chargedfollowing a jury trial. Supreme Court sentenced defendant, as a second felony offenderpreviously convicted of a violent felony, to an aggregate prison term of 20 years to befollowed by three years of postrelease supervision. Defendant now appeals.
We affirm. Contrary to defendant's contention, the jury's verdict was not against theweight of the evidence. The trial evidence established that investigators employed the CI,with whom they had worked dozens of times in the past and found to be reliable, toengage in two controlled buys from defendant on November 8, 2011 and November 9,2011. The CI set up the purchases via recorded telephone calls, and an investigator whoknew defendant and recognized his voice testified that it was he who answered the calls.Investigators searched the CI prior to conducting the buys to ensure that she had nocontraband, and the CI testified that she purchased a substance later identified as cocainefrom defendant on both occasions. The CI was also accompanied by undercover officersto both buys and, although the officers did not witness the [*2]actual handoff of cocaine, they observed the transactionsfrom a distance and retrieved cocaine from the CI after the transactions had occurred.Defendant was detained after the second buy and was found to have the prerecorded buymoney for both purchases in his possession. Defendant asserts that the CI gave unreliabletestimony and that neither she nor the various officers involved in the buy operationswere worthy of belief because they were all motivated to ensure that the target of theinvestigation—namely, defendant—was identified as the seller. It sufficesto say that those issues were explored during the trial by defense counsel and, according"appropriate deference to the jury's ability to view the witnesses and determine theircredibility, we find no basis to disturb the verdict as against the weight of the evidence"(People v Tisdale, 103AD3d 987, 988 [2013], lv denied 21 NY3d 1010 [2013]; see People v Rose, 79 AD3d1365, 1366-1367 [2010]).
Defendant further contends that he was deprived of a fair trial due to prosecutorialmisconduct during the People's summation, an issue that is unpreserved for our reviewdue to his failure to object to the offending comments at trial (see People v VanVorst, 118AD3d 1035, 1037 [2014]; People v Head, 90 AD3d 1157, 1158 [2011]). In any event,most of the statements that defendant now complains about were fair responses to thedefense summation that attacked the credibility of the CI and questioned various actionsor inactions on the part of her and the undercover officers (see People v James, 90 AD3d1249, 1251 [2011], lv denied 18 NY3d 958 [2012]; People v Molina, 79 AD3d1371, 1377 [2010], lv denied 16 NY3d 861 [2011]; People v Valderama, 25 AD3d819, 821 [2006], lv denied 6 NY3d 854 [2006]). The People did improperlyrefer to defendant as "a cocaine peddler" who made money off of "people with faces like[the jurors]," but Supreme Court acted on its own initiative by immediately striking thoseremarks from the record and instructing the jury to disregard them. Thus, we cannot saythat the comments of the People in summation constituted a flagrant and pervasivepattern of prosecutorial misconduct that deprived defendant of a fair trial (see Peoplev VanVorst, 118 AD3d at 1037; People v White, 79 AD3d 1460, 1464-1465 [2010], lvdenied 17 NY3d 803 [2011]).
Lastly, in light of defendant's extensive prior criminal history, we find no abuse ofdiscretion or extraordinary circumstances that would warrant a reduction of his sentencein the interest of justice (see People v Tisdale, 103 AD3d at 989).
McCarthy, J.P., Egan Jr. and Devine, JJ., concur. Ordered that the judgment isaffirmed.